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tails 

du 
odifier 

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et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  ndcessaire.  Les  diagrammes  suivants 
illustrent  la  m^thode. 


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THE 


TRADE  MARK  LAWS 


OF  THE 


UNVJTED    STATES, 

France,  Great  Britain,  German  Empire,  Canada, 
Belgium,  Russia  and  Austria. 


BY 


FRANCIS   FORBES. 


)^f  j^  real . 

NewYohk:   ^*&2PWA5m<*^' 


6.  S.  PELOUBET,  80  Nabbau  Strut, 
Law  Boouillkb. 

Oopyrigbt  1881,  hj  Fntnoia  Forbes. 


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INDEX 


FIRST  PART. 

8TATUTRH. 

California p.  3 

Connecticut pp.  4-26 

Dakota p.  4 

Delaware p.  25 

Geoboia p.  4 

Illinois p.  4 

Indiana p.  5 

Iowa p.  5 

Kansas p.  5 

Kentucky p.  5 

Louisiana 

Maine p.  5 

Maryland pp. 

Massachusetts p.  6    pp. 

MiCHIOAN p.  6 

Mississippi p.  26 

Missouri p.  6    pp. 

Montana p.  26 

Nebraska p.  7-26 

Nevada p.  7 

New  Jersey pp.  7-26 

New  York pp.  7-27     pp. 

North  Carolina 

Ohio pp  9-28    pp. 

Obeoon p,  10 

Pennsylvania p.  10    pp. 

Rhode  Island 

United  States .       p.  28    pp. 

•Utah p,  1 1 

ViHoiNiA p.  29 

Wisconsin pp. 


p.  13 
p.  13 


p.  14 
p.  14 
p.  14 
p.  30 

p.  14 
p.  14 

15-30 

16-30 

p.  16 

16-31 


17-31 

p.  19 

19-32 

19-32 

p.  20 

21-33 


21-32 


:             '':*                         ..   ^;  ■ 

■ 

SECOND  PART. 

•' 

THKAIIW.      ^ 

Arqentine  Confederation 

1 

Austria - . .    i  . 

Beloidm 

•> 

Bbazii 

....    3. 

Canada 

France 

3 

German  Empire 

.  .  .  .    4 

Grea"""  Britain 

...    4 

Russia 

....    5. 

1-  ■                                                            -   ■    , 

*i  !    >' 

it  ■  i- 


TRADR  MARK 
LAWS. 

41 
31 

24 

6 

18 

11 

37 


!.,1..-,lA 


■ ;;  i.  -  1 '. 


■^■.^^.^„. 


kTIRP. 

TRADR  MARK 
LAW8. 

1. 

1. 

41 

2 

31 

i. 

24 

3. 

6 

4. 

18 

4. 

11 

5. 

37 

y :  i'_  ;>'■  >^iv;t,.;ift-  i 


ADVERTISEMENT. 


The  following  pages  appeared,  for  the  most  part,  in  the  Ikon 
AoK,  at  the  instance  of  the  United  States  Trade  Mark  Association, 
and  from  that  journal  were  copied  into  many  others.     Chapters  2 
and  3  were  added  as  an  appendix  to  bring  the  cases  and  statutes 
down  to  date.     No  attempt  was  made  to  harmonize  the  decis'ons 
of  the  various  states,  but  rather  to  bring  out  the  differences  between 
such  decisions,     It  was  considered  that  the  effect  of  these  contra- 
.  dictory  decisions  in  connection  with  the  various  inconsistent  and 
often  ill -digested  laws  of  the  various  states  would  lead  to  national 
legislation  on  the  subject  of  Trade  Marks     There  have  been  added 
extracts  from  treaties,  conventions  and   declarations,  concerning 
Trade  Marks  between  the  United  States  and  some  foreign  Coun- 
tries ;  and  also  such  parts  of  the  French,  En^xish,  German,  Cana- 
dian, Belgian,  Russian  and  Austrian  Trade  Mark  statutes  as  are  of 
importance  to  citizens  of  the  United  States. 

The  paging  of  the  two  parts  is  different  because  the  parte  ffere 
printed  at  different  oflSces. 


165  Broadway,  New  York,  October,  1881. 


• 


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1 


CHAPTER  I. 


J5  I. — Property  in  trade  inarkH  is  pro- 
tected in  all  the  States  of  the  Union 
under  the  common  law.  By  common  law 
we  mean  "  thoHe  principles,  usages  and 
rules  of  action  applicable  to  the  government 
and  security  of  persons  and  property,  which 
do  not  rest  for  tneir  authority  upon  any  ex- 
press and  positive  declaration  of  the  will  of 
the  legislature."  In  the  States  of  Alabama, 
Arkansas,  Colorado,  Delaware,  Florida,  Lou- 
isiana, Maryland,  Minnesota,  Mississippi, New 
Hampshire,  Rhode  Island,  South  Carolina, 
Texas,  Tennessee,  Virginia,  Vermont,  Wis- 
consin and  West  Virginia,  there  exist  no 
statute?  on  the  subject  of  trade-marks,  and 
yet  suits  may  be  maintained  in  any  of  these 
'States  for  damages  and  t')  restrain  the  in- 
fringer. 

The  reports,  however,  she  v  that  owners 
of  trade-marks  have  not  had  occasion  to  en- 
force their  rights  under  the  common  law  in 
Alabama,  Arkansas,  Colorado,  Delaware, 
Florida,  Iowa,  Kansas,  Maine,  Minnesota, 
Mississippi,  Nebraska,  Nevada,  New  Hamp- 
shire, New  Jersey,  Oregon,  South  Carolina, 
Tennessee,  Texas,  Vermont,  Virginia,  West 
Virginia  and  Wisconsin.  If  any  suits  have 
been  brought  in  these  States  thay  have  not 
been  reported.  It  is  not  strange,  then,  that 
many  of  the  States  have  not  enacted  trade- 
mark statutes. 

It  is  necessary  to  distinguish  statutes  re- 
lating to  trade- marks  from  those  which  refer 
solely  to  cattle  brands  or  marks  and  log 
marks.  The  latter  statutes  have  been 
passed  in  many  of  the  States,  but  are  of 
merely  local  interest. 

§  2. — In  California  the  Political  Code,  ap- 
proved March  12,  1872,  contains  an  article 
on  trade  marks  (Art.  Ill,  Sec.  3196  to  Sec. 
3199,  Hittell's). 

"  Section  3196. — The  phrase  trade  mark  as 
used  in  this  chapter  includes  every  descrip- 
tion of  word,  letter,  device,  emblem,  stamp, 
imprint,  brand,  printed  ticket,  label  or  wrap- 
per usually  affixed  by  any  mechanic,  manu- 
facturer, druggist,  merchant  or  tradesman 
to  denote  any  g^oods  to  be  goods  imported, 
manufactured,  produced,  compounded  or 
sold  by  him,  other  than  any  name,  word  or 
expression  generally  denoting  any  goods 
to  be  of  some  particular  class  or  description." 


Any  such  person  may  secure  the  ex 
elusive  use  of  such  trade-mark,  by  filing 
with  the  Secretary  of  State  a  copy  or  de- 
scription of  the  same  and  claim  of  ownership, 
with  his  affidavit  that  he  is  the  exclusive 
owner  or  agent  of  the  owner. 

The  Secretary  of  State  is  required  to  keep 
a  record  of  all  trade-marks  so  filed,  and 
collect  a  fee  of  $3  each. 

"  Section  3 1 99.  Any  person  who  has  first 
adopted,  recorded  and  used  a  trade  mark  ot 
name,  whether  within  or  beyond  the  limits 
of  this  State,  is  its  original  owner.  Such 
ownership  may  be  transferred  in  the  same 
manner  as  personal  property,  and  is  entitled 
to  the  same  protection  by  suit  at  law."  In- 
junction may  be  granted. 

The  Civil  Code,  approved  March  21,  1872 
(Sec.  5655,  Hittell's),  enacts  that  there  may 
be  ownership  in  trade-marks,  and  (Sec.  5991 
Hittell's  ed.)  that  any  form,  symbol  or 
name  to  designate  origin  or  ownership, 
but  which  does  not  relate  to  the  name,  quality 
or  description  of  the  thing  or  business  or 
place,  and  not  previously  used,  may  be 
exclusively  appropriated  as  a  trade  mark  by 
any  one  who  produces  or  deals  in  a  particu- 
lar thing  or  conducts  a  particular  business. 
(As  amended  1874.) 

The  Penal  Code,  approved  July  14,  1872 
(Sec.  13,350  to  13,354  of  Hittell's),  provides 
that  every  person  who  willfully  forges  or 
counterfeits  a  trade  mark  with  intent  to  pass 
oS  any  goods  to  which  such  forged  or  coun- 
terfeit trade  mark  ir  affixed  as  the  genuine 
goods,  or  who  sells  or  keeps  for  sale  any  goods 
upon  which  a  counterfeit  trade  mark  has 
been  affixed,  intending  to  represent  such 
goods  as  the  genuine  goods  of  another,  know- 
ing the  same  to  be  counterfeited,  is  guilty  of 
a  misdemeanor.  The  phras«s  ' '  forged  trade 
mark  "  and  "  counterfeit  trade  mark  "  in- 
clude every  alteration  or  imitation  of  any 
trade  mark  so  resembling  the  original  as  to 
be  likely  to  deceive.  It  repeats  the  definition 
of  trade  mark  given  in  the  Political  Code, 
Sec.  3196. 

"Section  13,354.  Every  person  who  has  or 
uses  any  cask,  bottle,  vessel,  case,  cover,  label 
or  other  thing  bearing  cr  having  in  any  way 
connected  with  it  the  duly  filed  trade-mark  or 
name  of  another,  for  the  purpose  of  dispos- 
ing, with  intent  to  deceive  or  defrAud,  of 


I 


■■  ;•  >fi*t';\',*'-^-'^-"''^ 


'- . 


any  articlu  othttr  tlmn  that  wliirli  nucIi  vixnk, 
lM)ttle,  vuMHel,  caHe,  covtM-,  luli«'l  or  i>thi<r 
thing  oriKinally  contained  or  wiih  coinii-ctfd 
with  by  thu  ownor  of  HUch  tradu-niark  or 
nanio,  iH  Koilty  of  a  iniM(lt)numnor."  A  uiIh- 
(lumeanor  iH  (mniuhablo  bv  inipriHjiinii'nt  in 
thu  county  jail  not  oxc«m(int;  (>  nionthH,  or 
by  a  Wne  not  nxc'eo(lin>f  |5<J<),  or  by  both  (Scr. 
I3,ol(>  Hittrell'H  I'onal  ('ode). 

>5  3. — In  Connecticut  the  followinK  Mtatute 
iH  in  force (Oonoral  HtatuteH,  KuviHiomif  1875, 
p  523.)  "Every  jjernon  who  nhall  UHe,  forge, 
or  counterfeit  the  individual  Hthni]>  or  label 
of  any  mechanic  or  nianufactturer,  with  in- 
tent to  defraud  another  ;  or  who  Hhall  vend, 
or  oiTftr  to  vend,  any  goodH  having  any 
8uch  forged  or  counterfeited  ntanip  or  label 
thereon,  knowing  it  to  be  forged  or  coun- 
terfeited, without  discluHing  the  fact  to  the 
purchaser,  Hhall  be  inipriHoned  not  more 
than  six  monthH,  or  fined  not  nicire  than 
|ioo,  or  both." 

This  iH  the  reviuion  of  au  act  approved 
June  5,  1S47,  which  contained  Hubstantially 
the  same  proviHionH. 

^  4. — The  definition  of  trade  mark  con- 
tained in  the  Political  Code  of  California  is 
copied  into  the  Penal  Code  of  Dakota,  ap- 
proved February  7,  1877,  Sec.  415  (hoo  Sec. 
576  Civil  Code) ;  80  also  are  the  proviHions  of 
the  Penal  Code  of  California  in  reference  1 1 
counterfeiting  trode-markH,  and  selling 
goods  bearing  such  counterfeits  (SecH.  411 
and  413).  The  punishment,  however,  is  im- 
prisonment in  the  county  jail  not  exceeding 
one  year  or  fine  not  exceeding  $500,  or  both. 
Other  sections  of  the  act,  1.  e.,  See.  412, 
against  keeping  dies,  plates,  brands  or  imita- 
tions of  trade-marks  for  the  purpose  of  mak- 
ing counterfeits,  &c.,  and  Sec.  414,  agamst 
affixing  any  imitation  of  a  trade-mark  which 
is  the  same  to  the  eye  or  the  ear  as  the 
genuine,  ai'e  the  same  as  the  acts  of  Mis- 
souri and  New  York,  except  in  phraseology. 

The  punishment  in  the  same  as  prescribed 
in  Sees.  411  and  413,  except  that  the  person 
offending  under  Sec.  414  "  is  liable  to  the 
party  aggrieved  in  the  penal  sum  of  $100 
for  each  and  every  offense,  to  be  recovered 
by  him  in  a  civil  action." 

Sections    418   and    419   provide   for    the 

Eunisbment  of  persons  reHUing  or  selling 
ottles,  or  keeping  same  without  consent, 
the  marks  of  which  had  been  recorded  ac- 
cording to  law,  by  a  penalty  of  50  cents 
for  each  and  every  bottle  filled,  bought 
or  sold  for  first  offense,  and  $5  each  for  every 
9ubBequunt  offense.  Section  420  provides 
for  proceedings  to  obtain  search  warrant 
in  cases  mentioned  in  Sees.  418  and  419,  and 
for  the  summary  trial  of  the  offender,  when 
brought  before  the  magistrate,  and  fine  as 
prescribed. 

The  Civil  Code,  Sec.  160,  declares  that 
l^ere  may  be  ownership  in  trade  marks. 


,^  5. — In  (ieorgia,  b;,  Htaliiln,  coiirlK  nf 
tM|uity  nuiy  grant  injunctionH  and  relief. 

fi  ().  —  In  lllinoin,  '"  An  act"  (was  approved 
May  3,  1^73)  "  to  protect  nialiiil'acturi'rH,  Intt- 
tierH  and  dealers  in  ule,  jK)rter,  lager  beer, 
Hoda, mineral  water  and  other  buverageHjfrom 
the  loHs  of  their  cankH,  barrelH,  kegs,  Ixittles 
and  boxes."  All  perNonn  engaged  in  the  manu- 
facture, bottling  or  Helling  of  ale,  Hic,  in 
caNks,  barreln,  1<egs,  liottleH  or  boxt^H,  with 
their  nanien  or  their  niarkN  of  ownerHhip 
HtamptMl  or  marked  thereon,  may  file  in  the 
otHce  of  the  Secretary  of  State  and  in  that 
of  the  Comity  Clerk  of  their  county  a  de- 
scription of  Huch  names  and  marks,  andi)uli~ 
lish  same  in  a  newNpaper  of  said  county  for 
hIx  weekn.  It  in  de(!lared  to  be  unlawful 
for  any  perwm,  without  the  written  connent 
of  the  owner,  to  till  with  ale,  Ac,  or 
any  other  article  of  merchandiHe,  for  sale 
or  to  be  furniHhod  to  customcrB,  any  such 
casks,  barrelH,  kegn,  bottles  or  boxes  ho 
marked  01  Htam|ied,  or  to  sell,  dispose  of, 
buy  or  traffic  in  or  wantonly  destroy  any 
HUch  casks,  &c.,  so  marked  or  Ntamped  by 
the  owner  after  the  owner  shall  have  com- 
plioil  with  the  first  section  of  this  act.  Vio- 
lation of  act  is  made  a  misdemeanor;  punish- 
able by  fine  of  $5  for  each  cask,  barrel  or  box, 
and  50  centH  for  «ach  bottle  so  filled,  bought, 
sold,  used,  trafficked  in  or  wantonly  de- 
stroyed, together  with  the  costs  of  suit  for 
the  first  offense,  and  by  double  fine  for  eftch 
subsequent  offense. 

The  using  by  any  other  person  than  the 
rightful  owner  thereof  without  written  per- 
mission of  any  such  cask,  &C.,  for  the  sale 
therein  of  ale,  &c.,  or  any  other  article  of 
merchandise,  &c.,  or  to  be  furnished'-to  cus- 
tomers, or  the  buying,  selling  or  trafficking 
in  such  canks,  &c.,  by  any  person  othtr 
than  the  owner  without  such  written  per- 
mission, or  the  fact  that  any  junk  dealer  or 
dealer  in  casks,  &c.,  shall  have  in  his  pos- 
session any  such  cask,  &c.,  so  marked  and 
registered  without  such  written  peVmission, 
is  declared  to  be  prima  facie  evidence 
that  such  use,  buying,  selling,  traffick- 
ing or  possession  is  unlawful,  and  any 
person  found  guilty  of  such  use,  buying, 
selling,  &c.,  shall  be  liable  tu  be  arrested 
and  fined,  as  before  provided  ;  and  it  is  de- 
clared to  be  the  duty  of  any  justice  of  the 
■  peace,  &c.,  upon  oath  having  been  made 
;  that  any  person  has  violated  the  provisions 
of  this  act,  to  issue  his  warrant  and  cause  the 
;  accused  to  be  brought  before  him  and  tried, 
and  in  case  the  accused  in  found  guilty,  to 
assess  the  fine  above  stated.  On  oath  being 
made  by  the  owner  or  bis  agent  that  he  has 
reason  to  believe  that  any  manufacturer  or 
bottler  of  ale,  &c.,  or  any  other  person,  is 
using  bis  casks,  &c. ,  or  that  any  junk  dealer 
;  or  dealer  in  casks,  &c. ,  or  any  other  dealer  has 
any  such  casks,  &c.,  secreted  in  his  premises, 
'  the  said  justice,  &c.,  shall  issue  his   search 


Kia,  li;,  Httitiilt*,  coiii'tN  of 
.  iiijiiiictiiiiiH  anil  rit|i)>f. 

t,  '"  All  lift"  (wi»«  ii|i|>i-<ivuil 
(ii'Dti'ct  iiiuiiiifuctiirt'rM,  hot- 

in  ulo,  j«)rti'r,  UnfW  boor, 
IT  mill  othi'f  1)0 viTui^i'H,  from 
'uhWh,  bairolH,  koKM,  liottlos 
i-i'NoiiN  oiiK<i)(od  ill  tho  inaiiii- 

(ir  Holliiig  of  alo,  Ac,  in 
'K»,  IxittloH  or  liuxt^H,  witli 
thoir  iimrkN  of  ownorHliip 
ed  thuruoii,  may  tilo  in  the 
L^tary  of  State  and  in  that 
!lcrk  of  thoir  oouiity  a  do- 
iiainoH  and  nmrkH,  and  iitili 
wHjiauor  of  said  county  for 
I  doolarod  to  bo  unlawful 
without  tho  writti'u  couHout 
to  till  with  alo,  itc,  or 
)  of  morchandiHe,  for  Halo 
od  to  cuHtomcrB,  any  Huch 
[oKH,  bottles  or  boxes  ho 
i|>od,  or   to  soil,  dispoao  of, 

I  or  wantonly  doHtroy  any 
HO  niarkod  or  stamped  by 

the  owner  shall  have  cnni- 
st  section  of  this  act.  Vio- 
ado  a  misdemeanor;  punish  • 
for  each  cask,  barrel  or  box, 
aach  bottle  so  tilled,  bought, 
icked  in  or  wantonly  de- 
■  with  the  costs  of  suit  for 
and  by  double  fine  for  eftch 
io. 

any  other  person  than  the 
lereof  without  written  i)er- 
ich  cask,  &c,,  for  the  sale 
c,  or  any  other  article  of 
. ,  or  to  be  f umished'-to  cus- 
lying,  selling  or  trafficking 
Jfcc,  by  any  person  othtr 
without  such  written  per- 
act  that  any  junk  dealer  or 
Sec,  shall  have  in  his  pos- 
cask,  &c.,  so  marked  and 
at  such  written  permission, 
be  prima  facie  evidence 
buying,  selling,  traffick- 
ou  IS  unlawful,  and  any 
uilty  of  such  use,  buying, 

II  be  liable  tu  be  arrested 
ore  provided  ;  and  it  is  de- 
iuty  of  any  justice  of  the 
Q  oath  having  been  made 
has  violated  the  provisions 
lie  his  warrant  and  cause  the 
}ught  before  him  and  tried, 
s  accused  is  found  guilty,  to 
>ove  stated.  On  oath  being 
ler  or  bis  agent  that  he  has 
e  that  any  manufacturer  or 
c,  or  any  other  person,  is 
&c. ,  or  that  any  junk  dealer 
I,  &c. ,  or  any  other  dealer  has 
tc,  secreted  in  his  premises, 
&c.,  shall  issue  his  search 


warrant  and  oauM  the  premiHoi  to  be 
Mpnrrliod,  &o.,and  in  cone  any  such  cask,  ftc, 
shall  bo  found  in  tho  pruiniseH,  the  oftlcof  exe- 
cuting tho  search  warrant  «lmll  Arro)s  ihe 
porNon  namnd  in  the  suarch  warrant  And 
bring  liim  before  itaid  justice,  who  Ahall  hoar 
tho  oiiHo,  and  if  tho  accused  is  found  guilty 
flno  him  as  above  stated. 

March  27,  1S74.  there  was  approved  "  An 
act  to  revise  the  law  in  relation  to  criminal 
jurisprudence,"  which  contains  the  following 
suctions : 

"iSic/fon  115.  Whoever  knowingly  »nd  will- 
fully counterfeits,  or  oausos  t<j  bo  counter- 
feited, any  private  stamp,  label  or  trudo-mnrk 
used  by  a  men^hant  or  manufacturer  nbout  tho 
Hiile  of  his  goods,  with  iiitent  to  defraud  the 
purchnser  or  manutacturer,  or  sells  such 
goods  with  HUch  counterfeit  stamps,  labels 
or  trade-marks  thoieon,  knowing  them  to  bo 
counterfeit,  shall,  for  each  offense,  be  ftiiod 
not  exceeding  $300. 

"Section  116.  When  a  person  uses  any 
peculiar  name,  letters,  mark,  device,  or  fig- 
ures cut,  stamped,  cast  or  engraved  upon,  or 
in  any  way  attached  to  or  connected  with, 
uny  article  manufactured  or  sold  by  him,  to 
designate  it  as  an  article  of  a  peculiar  kind, 
character  or  quality,  or  as  manufactured  by 
him,  whoever  shall,  without  his  consent,  use 
the  same  or  any  similar  names,  letters, 
marks,  devices  or  figures,  for  the  purpose  of 
falsely  representing  any  articles  to  have 
been  manufactureu  by  him,  or  to  be  of  the 
same  kind,  character  or  quality  as  that 
manufactured  or  sold  by  the  party  rightfully 
using  the  same,  shall,  for  each  offense,  be 
fined  not  exceeding  $200. " 

^  7. — In  Indiana  an  act  was  approved 
March  16,  1875,  entitled  "An  act  to  protect 
the  manufacturers  '■*>d  bottlers  of  mineral 
water,  ale,  cider,  L        and  ginger  pop." 

It  provides  that  manufacturers  and  ven- 
dors of  mineral  water,  cider,  beer,  ginger 
pop  and  other  beverages  in  bottles  impressed 
with  their  names  or  other  trade  marks  may 
file  with  the  Clerk  cf  the  Circuit  Court  in 
any  county  a  written  description  and  sample 
of  bottle  and  marks,  and  cause  such  descrip- 
tion to  be  published  for  two  weeks  in  a 
newspaper  in  said  county  ;  and  that  it  shall 
be  unlawful  for  any  person,  without  the  con- 
8ent<  in  writing  of  the  owner,  to  fill  such 
bottles  with  mineral  water,  &c.,  or  to  o£fer 
for  sale  or  to  traffic  in  any  such  bottles  not 
purchased  by  him  of  the  owner,  and  per- 
sons offending  shall  be  liable  to  a  fine  of  $1 
for  each  bottle  so  filled,  sold  or  used  for  the 
first  offense  and  of  $5  for  every  subsequent 
offeiiK  V      Clerk's  fee,  $1. 

§  8. — In  Iowa  it  is  provided  in  the  Code  of 
1873,  Sec.  4079^  "If  any  person  counterfeit 
any  mark,  stamp,  or  brand  of  another,  or 
falsely  mark  any  cask,  package,  box  or  bale, 
as  to  quality  or  quantity  with  intent  to  de- 
fraud, he  shall  be  punished  by  fine  not  ex- 
ceeding  |2oo  or  by   imprisonment  in  the 


county  jail  not  more  than  six  monthk,  or  by 
both  Hno  and  impriNonment." 

"Srctiim  4080,  If  any  persim  with  intent 
to  defraud  use  any  cask,  package,  Imix  or 
bale,  niiirkod,  branded  or  stamped  by 
onothor  for  the  sale  of  merchandise  or  pro- 
duce of  an  inferior  (luality,  or  less  in  quan- 
tity Of  weight  than  m  denoted  by  such  mark, 
stamp  or  brand,  he  shall  be  punished  by  im- 
priHonnioiit  in  llie  county  jail  not  more  than 
0110  yeiir,  or  by  lliiti  not  exceeding  ;>2oo, 
or  by  both  fine  and  imprisonment,  at  tho 
diseretioii  of  tlit  court."  (fSanie  as  Section 
4400  and  4401  of  Kovision  of  18C0.) 

'^^). — In  Kansas  "  An  act  (took  effect  May 
31,  iS6())  to  prevent  tho  counterfeiting, 
changing  or  destroying  trademarks,  devices 
and  brands:" 

"  SirlioH  I.  If  any  person  or  persons  shall 
willfully  change,  alter,  deface,  destroy, 
couiiterfeit,  cut  out  or  dispose  of  any  trade- 
mark, brand,  impression  or  device  used  by 
any  person,  company  or  corporation  within 
this  istate,  to  designate  a  particular  descrip- 
tion of  goods,  wares,  merchandise,  cask, 
liarrel,  half-barrel,  keg,  bottle,  package, 
or  the  contents  thereof,  he  or  they  shall  for- 
feit and  pay  to  the  owner  or  owners  thereof, 
for  each  otTenso,  not  exceeding  the  sum  of 
I25,  to  bo  recovered  in  any  court  praper  to 

.  try  the  same,  or  before  a  justice  ofthe  peace 

I  having  jurisdiction  of  same. 

I      "Section  2.  If  any  person   shall   change, 

,  shift  and  plaoe  any  brand,  mark  or  device 
used  or  intended  to  be  used  for  the  purpose 

!  aforesaid,  to  or  upon  any  piece  of  goods," 
&c. ,  "  or  shall  intermix,  take  out,  change  or 
shift  any  article  liquid  or  commodity  what- 
ever, into  a  branded  cask,"  &c.,  or  package, 
and  thereby  avail  himself  of  another  person's 
brand,  mark  or  device,  he  shall  forfeit  for 
every  offense  the  sum  of  $25,  to  be  recovered 
as  above. 

S  10. — The  General  Statutes  of  Kentucky, 
j  1873,  copy  the  statutes  of  Indiana,  and  add 
j  the  following  section  :  "If  any  person  use  a 
I  false  brand  on  anything  sold,  or  to  be  sold 
i  or  offered  for  sale,  with  intent  to  deceive 
purchasei  s,  he  shall  be  fined  for  each  offense 
not  less  than  $200."    Clerk's  fee  for  record- 
ing description,  $2. 

g  II. — The  Revised  Statutes  of  Maine  (1871) 
provide  that  whosoever  knowingly  and  will- 
fully counterfeits  any  private  stamps,  labels 
or  trade-marks  with  intent  to  defraud  the 
purchaser  or  manufacturer ;  or  sells  such 
goods  with  the  counterfeit  stamps  thereon 
without  disclosing  the  fact  to  the  purchaser, 
shall  be  punished  by  imprisonment  less  than 
one  year,  or  by  fine  not  exceeding  $200  ; 
also,  that  if  any  person  shall  use  another's 
trade-mark  for  the  purpose  of  falsely  rep- 
resenting any  article  io  have  been  manufac- 
tured by  him,  or  to  be  of  the  same  kind  and 
character  as  that  manufactured  by  the 
party  rightfully  using  the  a«me,  the  party 


6 


l(: 


offending  shall  be  liable  to  any  person  ag- 
grieved for  all  damages  incurred  ;  eIho,  that 
no  person  shall  use  the  name  of  any  person 
formerly  connected  with  him  in  business, 
either  alone  or  in  connection  with  his  own 
name,  without  the  consent  in  writing  of 
such  prrson  or  his  legal  representative.  The 
Supreme  Judicial  Court  may  grnr.t  injunc- 
tions to  restrain  the  violation  of  the  above 
provisions.  The  revision  embodies  Chap, 
lo,  Public  Laws  of  1866. 

§  12. — The  General  Statutes  of  Massachu- 
setts provide  (Chapter  56,  Act  of  1859,  Chap- 
ter 234)  that  when  a  person  uses  a  trade  mark 
no  other  shall  use  the  same  for  the  purpose  of 
falsely  representing  any  article  to  have  been 
mnnufactured  by  or  to  be  of  same  kind,  char- 
acter, (juality,  as  that  manufactured  or  sold 
by  the  person  rightfully  using  such  trade 
mark,  under  the  penalty  of  responding  in 
damages  to  the  party  aggrieved ;  also  (by 
Act  of  1853,  Chapter  156),  that  no  person 
shall  continue  to  use  the  name  of  a  person 
formerly  connected  with  him  in  business  with- 
out the  consent  in  writing  of  such  person  or 
his  legal  representatives.  The  Supreme  Ju- 
dicial Court  may  restrain  by  injunction  any 
use  of  trade  marks  or  names  iu  violation  of 
above  section.  In  Chaptsr  161,  Sec.  55 
(Act  of  1850,  Chapter  90),  it  is  also  pro- 
vided that  whoever  knowingly  and  will- 
fully forges  or  counterfeits  upon  any  goods, 
&c.,  the  private  label  or  trade  mark  of 
any  mechanic  or  manufacturer,  with  intent 
to  defraud  the  purchaser  or  manufacturer 
of  any  goods,  &c  ,  whatever,  shall  be  pun- 
ished by  imprisonment  not  exceeding  six 
months,  or  by  fine  not  exceeding  $50  ;  also, 
that  whoever  vends  any  goods,  &c.,  hav- 
ing thereon  forged  or  counterfeited  stamp, 
label  or  trade  mark,  knowing  the  same  to 
be  forged,  without  disclosiug  the  fact  to  the 
purchaser,  shall  be  punished  by  imprison- 
ment not  exceeding  six  months,  or  by  fine 
not  exceeding  $50. 

"An  Act  to  prevent  fraud  in  the  sale  of 
watches"  (was  approved  June  ir,  1870), 
"  whoever  shall  knowingly  sell  or  expose 
for  sale  any  watch,  watch  case  or  watch 

*    *    con- 


movement  having  any  name 
nected  therewith  in  violation  of  Sec.  56  of 
the  General  Statutes,  shall  be  punished  by 
imprisonment  not  exceeding  one  year,  or  by  a 
fiae  not  exceeding  $200  ;  and  the  possession 
of  two  or  more  such  watches  shall  be  prima 
facie  evidence  of  such  selling  or  exposing 
for  sale." 

§  13. — The  Compiled  Laws  of  Michigan  con- 
tain * '  an  act  to  prevent  and  punish  the 
counterfeiting  and  fraudulent  use  of  trade 
marks,  labels,  stamps,  &c."  Approved  Feb- 
ruary 6,  1863.  It  provides  that  every  person 
who  shall  knowingly  o-  willfully  forge 
or  counterfeit  or  cause,  Sec,  any  rep- 
resentation, likeness,  &c.,  of  the  private 
stamp,  brand,  mark,  wrapper  or  label  usual- 
ly aflbed  by  any  mechanic,  druggist  *  *  * 


!  with  intent  to  deceive  and  defraud  the  ])nr- 
chaser  *   *  *  upon  conviction  thereof  shall 
be  punished  by  imprisonment  in  the  county 
jnil  for  a  term  not  exceeding  six  months  or 
by   line   not  exceeding  |iooo,  or  both.     It 
contains  a  similar  provision  in  reference  to 
persons     having  in   thei-    ]X)sse8sion    dies, 
plates,  engravings  or  piinted  labels,  brands, 
stamps,  wrappers  or  any  representation,  &c., 
j  with  intent  to  use  or  sell  the  same  for  the 
I  purpose  of  aiding  or  assisting  in  any  way 
!  whatever  in   vending  any   goods,   &c.,    in 
imitation  of  or  intended  to  resemble,  &c., 
the  goods  of  others.    The  fine  is  $500,  other- 
wise the  punishment  is  the  same. 

It  also  contains  a  similar  provision  in 
reference  to  persons  who  shall  sell  any  goods 
with  forged  or  counterfeit  stamps,  &c., 
knowing  t^em  to  be  forged,  or  spurious 
goods  witii  ■_■  jnuine  stamps  with  i'.itent  to 
defraud,  &c. 

I  In  the  case  of  spurious  goods,  however, 
the  punishment  is  a  fine  of  $250  or  im- 
prisonment not  more  than  three  months  or 
both. 

g  14. — In  Missouri  "An  act"  (was  approved 
.  March  6, 1866)  ''  to  protect  mechanics,  man- 
ufacturers and  others  in  their  trade-marks." 
It  provides  that  a  description  of  the  trade- 
I  mark,  duly  acknowledged,  shall  be  recorded 
in  the  office  of  the  Recorder  of  Deeds  of  the 
county  where  articles  to  bear  the  mark  are 
manufactured,  and  that  such   record  shall 
I  be  notice  to  all  persons.     A  second  act  with 
same  title  was  approved  February  22,  1870. 
I  It  provides  in  addition  that  any  person  who 
;  shall  knowingly  and  willfully  forge  or  coun- 
I  terfeit  any  representation,  &c.,  of  the  pri- 
I  vate  label,  brand,  stamps,  wrapper,  engrav- 
'  ing,  mold  or  trade- mark  of  any  manufac- 
turer, &c.,  with  intent  to  pass  off  any  goods 
'  &e. ,  to  which  said  forged  counterfeit  repre- 
:  sentation  is  affixed,  or  in  connection  with 
I  which  same  may  be  used  as  the  goods,  &c., 
of    such   manufac*''Urer,    shall    be    deemed 
guilty  of  a  misdemeL'>.nor  and  punished  by 
imprisonment  in  the  county  jail  for  a  period 
'  of  not  less  than  three  months  nor  more  than 
twelve  months,  or  fined  not  less  than  $500 
nor  more  than  $5000,  or  both. 

It  also  provides  that  any  person  who  shall 
with  intent  to  defraud,  have  in  his  posses- 
sion   any    die,    plate,     brand,     engraving, 
I  printed    label,  stamps,    imprints,    &:c.,    or 
'  trade-marks,  &c.,  or  any  imitation  of  said 
marks,  &c.,  usually  affixed  by  any  manu- 
I  f acturer,  &c. ,  for  the  purpose  of  making 
j  impressions  or  selling  the  same  when  made, 
I  or  using  the  same  in  connection  with  any 
'  other  articles  made,  &.C.,  by  him  for  the 
purpose  of  making  impressions  or  selling 
,  the  same  when  mside,  or  using  the  same  in 
connection   with  any  other  article    made, 
.  &c. ,  and  passing  the  same  off  upon  the  com- 
munity ac  the  original  goods,  &c.,  of  any 
other  person,  or  who  shall  in  fact  sell  or  use 
the  same,  &c.,  or  who  shall  wrongfully  or 
fraudulently  use  the  genuine  labpl,  &c.,  or 


(ceive  and  defraud  the  i)iir- 
on  conviction  tiiereof  slmli 
iprisonment  in  tiie  county 
t  exceeding  six  months  or 
jeding  $1000,  or  both.  It 
•  provision  in  reference  to 
in  thei~*  possession  dies, 
s  or  pi  inted  labels,  brands, 
or  any  representation,  &c. , 
I  or  bell  the  same  for  the 
J  or  assisting  in  any  way 
iding  any  goods,  &c.,  in 
ntended  to  resemble,  &c., 
•8.  The  fine  is  $500,  other- 
?nt  is  the  same. 
IS  a  similar  provision  in 
ins  who  shall  sell  any  goods 
counterfeit  stamps,  &c., 
)  be  forged,  or  spurious 
ne  stamps  with  intent  to 

spurious  gfoods,  however, 
is  a  fine  of  I250  or  ini- 
lore  than  three  months  or 


iri  "An  act"  (was  approved 
o  protect  mechanics,  man- 
lers  in  their  trade-marks. " 
,  description  of  the  trade- 
wledged,  shall  be  recorded 
>  Recorder  of  Deeds  of  the 
cles  to  bear  the  mark  are 
id  that  such  record  shall 
rtfons.  A  second  act  with 
jroved  February  22,  1870. 
tion  that  any  person  who 
id  willfully  forge  or  coun- 
entation,  iScc.,  of  the  pri- 
stamps,  wrapper,  en§;rav- 
ie-mark  of  any  manufac- 
tent  to  pass  off  any  goods 
forged  counterfeit  repre- 

d,  or  in  connection  with 
e  used  as  the  goods,  &c., 
*''Urer,  shall  bo  deemed 
TiBixnor  and  puni&hed  by 
le  county  jail  for  a  period 
ree  months  nor  more  than 
fined  not  less  than  $500 
X),  or  both. 

bhat  any  person  who  shall 
aud,  have  in  his  posses- 
ate,  brand,  engraving, 
mps,  imprints,  &c.,  or 
or  any  imitation  of  said 
ly  afiixed  by  any  manu- 

the  purpose  of  making 
ng  the  same  when  made, 

in  connection  with  any 

e,  (Stc,  by  him  for  the 
g  impressions  or  selling 
tde,  or  using  the  same  in 
my  other  article  made, 
16  same  off  upon  the  com- 
pnal  goods,  &c.,  of  any 
bo  shall  in  fact  sell  or  use 
who  shall  wrongfully  or 
lie  genuine  lab.el,  &c.,  or 


trade-mark  with  intent  to  pass  off  any 
goods,  &c.,  not  th«  manufacture  of  the  per- 
son to  whom  such  label,  Ac,  properly  be- 
longs, shall  be  deemed  guilty  of  a  misde- 
meanor and  punished  as  before  stated. 

It  also  provides  that  any  person  who  shall 
vend  or  keep  for  sale  any  goods,  &c.,  upon 
which  any  forged  imitation  or  counterfeit 
label,  &c.,  shall  be  placed,  knowing  the 
same  to  be  imitation  or  counterfeit,  shall  be 
deemed  guilty  of  a  misdemeanor  and  pun- 
ished as  before  stated,  except  that  the  low- 
est term  of  imprisonment  is  one  month.  He 
shall  also  be  liable  to  a  civil  action  to  the 
person  whose  goods,  or  whose  labjls,  &c., 
are  imitated  or  counterfeited  for  all  dam- 
ages which  such  person  shall  sustain,  both 
by  virtue  of  the  loss  of  profits  and  the  dam- 
age done  to  the  reputation  of  the  genuine 
artici  ,  &c.,  and  lie  may  be  enjoined  from 
doing  any  of  the  acts  mentioned. 

It  also  >i'ovide8  that  any  person  who,  with 
intent  to  defraud,  shall  affix  any  label,  &c., 
which  shaH  designate  any  aHicle  by  any 
word  or  words,  or  by  general  design,  ivhieh 
shall  be  the  same  to  the  eye,  or  in  sound  to 
the  ear,  as  the  word  or  design  used  to  desig- 
nate goods,  &.C.,  of  another,  shall  be 
deemed  guilty  of  a  misdemeanor  and  liable 
to  the  latter  in  the  penal  sum  of  I500,  and  for 
a  further  sum  equal  to  the  amount  which 
the  aggrieved  party  might  have  received  for 
the  same  amount  of  genuine  goods,  &c. ,  and 
may  be  punished  by  imprisonment  in  the 
county  jail  for  a  period  not  less  than  one 
month,  or  more  than  twelve  months.  The 
seizure  and  destruction  of  counterfeit  trade- 
marks, and  seizure  and  sale  of  goods  bearing 
such  marks,  is  provided  for. 

§  15. — The  General  Statutes  ef  Nebraska 
(1873,  p.  758)  contain  a  provision  that  "if 
any  person  shall  falsely  make,  alter,  forge, 
counterfeit,  print  or  photograph,  any  private 
stamp,  brand,  wrapper,  label  or  trade-mark, 
usually  afiixed  by  any  mechanic,  manufac- 
turer, druggist,  merchant  or  tradesman,  to  or 
upon  the  goods,  wares  and  merchandise,  pre- 
paration or  mixture  of  such  mechanic,  man- 
ufacturer, druggist,  itn-i-chant  or  trades- 
man" *  ♦  *  with  intent  to  damage 
or  defraud  any  person,  &c.,  or  who  shall 
utter  or  publish,  as  true  and  genuine,  any 
such,  knowing  tbe  same  to  be  false,  &c., 
shall  be  imprisoned  in  the  penitentiary  for 
any  space  of  time  not  exceeding  twenty 
years,  nor  less  than  one  year,  and  pay  a  fine 
not  exceeding  $500. 

It  also  provides  for  the  punishment  of 
pe:  3on9  keeping  false  dies,  &.C. ,  for  the  pur- 
pose of  counterfeiting  as  above,  by  imprison- 
ment for  not  less  than  six  months  nor  more 
than  10  years,  and  a  fine  not  exceeding 
$1000.  Also  that  "  any  person  who  ohall 
vend,  or  keep  for  sale,  any  goods,  »  »  * 
upon  which  any  forged  or  counterfeit 
stamps,  *  *  *  or  trade  marks  shall 
be  affixed  and  intended  to  represent  the  said 
j^oods,    *    *    *    as  the  true  and  genuine 


goods,  ♦  *  *  of  any  person  or 
persons,  knowing  the  same  to  bo  counterfeit, 
bhall  be  punished  by  a  fine  not  exceeding 
fioo." 

g  16. — In  Nevada  "An  act"  (was  approved 
March  8,  1865)  "  concerning  trade-marks 
and  names."  The  registration  of  the  trade- 
mark or  name  with  the  Secretary  of  State 
is  necessary  to  obtain  advantage  of  act.  For 
such  registration  there  is  a  fee  of  |20.  It 
is  made  unlawful  for  any  person,  without 
the  consent  of  the  owner  of  trade-  mark,*to 
use  such  mark  tor  the  purpose  of  represent- 
ing any  article  to  have  been  manufactured 
or  sold  by  such  owner,  or  to  be  of  the  same 
Kind,  character,  or  quality  as  his.  Any 
person  violating  act  shall  be  guilty  of  mis- 
demeanor and  punished  by  a  fine  of  not  less 
than  I25,  nor  more  than  $500,  or  by  im- 
prisonment in  the  county  jail  for  not  less  than 
five  days  nor  more  than  thirty  days,  or 
both,  and  he  shall  be  further  liable  to  the 
party  aggrieved  for  all  damages  actually  in- 
curred, to  be  recovered  as  a  debt. 

Counterfeiting  of  trade-mark,  oi-  using  a 
counterfeit  trade-mark,  or  selling  any 
article  bearing  a  counterfeit  trade-mark, 
filed,  &c.,  knowing  it  to  be  such,  or  having 
good  reason  to  know  it  to  be  such,  is  un- 
lawful and  punishable  as  above. 

Filling  old  bottles  and  casks  having  trade- 
marks attached,  with  intent  to  defraud,  is  a 
misdemeanor  and  punishable  as  above. 

' '  Every  person  who  shall  knowingly  aid  or 
abet,  or  counsel  in  or  procure  the  commis- 
sion of  any  offense  which  is  by  this  act 
made  a  misdemeanor,  shall  be  deemed  and 
held  to  be  guilty  of  a  misdemeanor,"  and 
punished  as  above. 

Trade-marks  may  be  transferred  like  per- 
sonal property,  and  shall  be  entitled  to  same 
protection  as  personal  property.  Courts 
may  restrain  by  injunction  any  use  of  trade- 
marks in  violation  of  act. 

§  17. — The  Revised  Statutes  ef  the  State  of 
New  Jersey  (1877)  contain  the  following  sec- 
tion under  the  title  "  Crimes,"  viz. :  "  Every 
person  who  shall  knowingly  and  willfully 
forge  or  counterfeit,  or  cause  or  procure  to 
be  forged'or  counterfeited,  upon  any  goods, 
wares  or  merchandise,  the  private  stamps  or 
labels  of  any  mechanic  or  manufacturer, 
with  intent  to  defraud  the  purchasers  or 
manufacturers  of  any  goods,  we  res  or  mer- 
chandise whatsoever,  or  who  shall  vend  any 
goods,  wares  or  merchandise,  having  thereon 
any  forged  or  counterfeited  stamps  or  labels, 
purporting  to  be  the  stamp  or  label  of  any 
mechanic  or  manufacturer,  knowing  the 
same  to  be  forged  or  counterfeited,  without 
disclosing  the  fact  to  the  purchaser,  shaD, 
upon  conviction,  be  deemed  guilty  of  a  mis- 
demeanor, and  shall  be  punished  by  im- 
prisonment in  the  county  jail  not  exceeding 
six  months,  or  by  fine  not  exceeding  $100." 

§  18.— InNewYork  "Anact"  (was passed 


8 


April  17,  i8b2)  "  to  prevent  and  punish  fraud 
in  the  use  cf  false  stamps,  brands,  labels  or 
trade  marks."  (Repealing  a  similar  act 
of  1845,  Chapter  279;  amended  1850, 
Chapter  123.)  It  provides  that  any  person 
who  shall  knowingly  and  willfully  forge  or 
counterfeit  any  representation,  &c.,  of  the 
private  stamp,  brand,  wrapper,  label  or 
trade-mark  usually  affixed  by  any  manufac- 
turer, &c.,  or  cause  same  to  be  done  with  in- 
tent to  pass  oS  any  work,  goods,  &c. ,  as  the 
work,  goods,  &c.,  of  such  manufacturer, 
shall  be  deemed  guilty  of  a  misdemeanor, 
and  punished  by  imprisonment  in  the  coun- 
ty jail  for  a  period  of  not  less  than  six  nor 
more  than  twelve  months,  or  flned  not  more 
than  I5000. 

It  also  provides  the  same  punishment  for 
any  person  who  shall  with  like  intent  have 
in  his  possesiiion  any  die,  plate,  brand,  en- 
graving or  prmied  label,  &c.,  or  imita- 
tion of  same,  usually  affixed  by  any  manufac- 
turer, &c.,  to  articles  made  by  him,  for  the 
purpose  of  making  impressions  or  selling  the 
same  ^vhen  mode,  or  using  same  upon  any  ar- 
ticle, ard  passing  same  off  upon  the  com- 
munity as  the  original  goods,  Sec,  of  any 
other  person  ;  or  who  shall  fraudulently  use 
a  genuine  st/..np,  &c.,  or  trade  mark 
with  intent  to  pass  off  any  spurious  goods, 
&c.,  OS  genuine. 

It  also  provides  that  any  person  who  shall 
vend  or  keep  for  sale  any  goods,  &c.,  upon 
which  any  forged  or  coimterfeit  stamps, 
&c.,  shall  be  placed,  knowing  the  same  to 
be  counterfeit,  shall  be  deemed  guilty  of  a 
misdemeanor  and  punished  by  a  fine  not  ex- 
ceeding $500,  and  (amended  act  of  1863, 
chapter  2og)  shall  also  be  liable  in  a 
civil  action  to  a  person  whose  gxxjds,  Sec, 
are  counterfeit  or  whose  trade-marks  are 
forged,  for  all  damages  such  person  may 
sustain  by  means  of  any  of  the  acts  men- 
tioned, and  may  be  restrained  by  injunc- 
tion. 

Act  of  1862  also  provides  the  punishment 
first  above  given  for  any  person  who  shall, 
with  intent  to  defraud,  knowingly  affix  or 
cause  to  be  affixed  to  any  bottle,  can,  box  or 
package  containing  any  goods,  &c.,  any 
■tamps,  &c. ,  which  shall  designate  the  goods 
by  a  word  or  words  which  shall  be  the  same, 
wholly  or  in  part,  to  the  eye  or  in  sound  to 
the  ear,  as  the  words  used  by  any  other  per- 
son to  designate  his  goods,  or  shall  knowingly 
sell  or  offer  for  sale  any  such  bottle,  &c., 
with  such  stamp.  By  amendment  of  1863, 
(Chapter  209,)  he  is  liable  to  the  party  ag- 
grieved in  the  penal  sum  of  |ioo  /or  each 
offense.  A  suoplemental  act  was  passed 
June  8,  1878  (Cliapter  401),  which  is  as  fol- 
lows: 

"An  act  supplemental  to  chapter  three 
hundred  afad  six  of  the  laws  of  eighteen 
hundred  and  sixty-two,  entitled  An  cct  to 
prevent  and  punish  fraud  in  the  use  of 
■tampa,  brands,  labels  or  trade  marks." 
.  "Section  i. — Any  person  or  persons  who, 
with  iutent  to  defraud  or  to  enable  another 


to  defraud  any  person,  shall  manufacture  or 
knowingly  sell,  or  cause  to  be  manufactured 
or  sold,  any  article  or  articles  marked, 
stamped  or  branded,  or  encased  or  enclosed 
in  any  box,  bottle  or  wrapper  having  thereon 
any  engraving  or  enicravings,  or  prmted 
labels,  stamps,  imprintK,  marks  or  trade- 
marks, which  article  or  articles  are  not  the 
manufacture,  workmanship  or  production 
of  the  person  named,  indicated  or  denoted 
by  such  marking,  stamping  or  branding,  or 
by  or  upon  such  engraving  or  engravings, 
printed  labels,  stamps,  imprints,  mark  or 
irade-niark,  shall,  upon  conviction  thereof 
be  deemed  guilty  of  a  misdemeanor,  and  for 
such  offense  shall  forfeit  and  pay  a  fine  of 
$100,  to  be  recovered  with  costs  in  any  of 
the  courts  of  this  State  having  cognizance 
thereof  in  an  action  to  be  prosecuted  by  the 
District  Attorney  in  the  name  of  the  people 
and  the  one-half  of  such  recovery  shall  be 
paid  to  the  informer  and  the  residue  shall  be 
applied  to  the  support  of  the  poor  in  the 
county  where  such  recovery  is  had." 

"Section  2. — Ajy  person  or  persons  who, 
with  intent  to  defraud  or  to  enable  anothei 
to  defraud  any  person,  shall  manufacture 
or  knowingly  sell  or  expose  for  sale  01 
offer  to  sell  or  have  in  his  or  her  pos- 
session, with  intent  to  sell,  any  article  01 
articles  marked,  stamped  or  branded,  01 
encased  or  enclosed  in  any  box,  bottle  01 
wrapper,  having  thereon  printed,  marked, 
stamped  or  engraved  any  word  or  words 
sign  or  signs  ihdicating  or  denoting  01 
purporting  to  indicate  or  denote  the  qual- 
ity, grade  or  character  of  such  article  01 
articles,  which  do  not  truly  indicate,  denote 
or  represent  the  quality,  grade  or  character 
of  such  article  or  articles,  shall,  uppn  con- 
viction thereof,  be  deemed  guilty  of  'a  mis- 
demeanor, and  for  each  such  offense  shall 
forfeit  and  pay  a  fine  of  |ioo,  to  be  recov- 
ered, with  costs,  in  any  of  the  courts  of  this 
State  having  cognizance  thereof,  in  an  action 
to  be  prosecuted  by  the  District  Attorney,  in 
the  name  of  the  people,  and  the  one-half  of 
such  recovery  shall  be  paid  to  the  informer 
and  the  residue  shall  be  applied  to  the  sup- 
port of  the  poor  in  the  county  where  such 
recovery  is  had." 

"Section  3. — This  act  shall  take  effect  im- 
mediately." 

In  1847  an  act  was  passed  (Chapter  207)  in 
relation  to  sale  of  bottles  used  by  manufac- 
turers of  mineral  waters  and  others.  Regis- 
try of  names  or  other  marks  was  allowed 
This  act  was  amended  by  Chapter  117  of 
Laws  of  i860.  A  new  and  more  extended 
act  was  passed  May  14,  1875  (Chapter  303) 
which  is  as  follows  : 

"  An  act  to  protect  the  owners  of  bottles, 
boxes,  baskets,  casks  and  syphons  used  in  the 
sale  uf  soda  waters,  mineral  waters,  porter 
«de,  cider,  ginger  ale,  small  beer,  lager  beer, 
white  beer,  or  other  similar  beverages." 

'  Section  i. — All  persons  and  corporations 
engaged  in  the  manufacture,  bottling,  pock- 
ing in  boxes,  baskets  or  caaks,.or  in  the  sole 


"W14 


"^ 


person,  shall  manufacture  (ir 
or  cause  to  be  manufactured 
rticle  or  articles  marked, 
ided,  or  encased  or  enclosed 
le  or  wrapper  having  thereon 
or  enfirraving!!,  or  prmted 
impnntK,  marks  or  trade- 
rticle  or  articles  are  not  the 
workmanship  or  production 
lamod,  indicated  or  denoted 
stamping  or  branding,  or 
h  engraving  or  engravings, 
stamps,  imprints,  mark  or 
ill,  upon  conviction  thereof 
iV  of  a  misdemeanor,  and  for 
11  forfeit  and  pay  a  fine  of 
ivered  with  costs  in  any  of 
lis  State  having  cognizance 
ztion  to  be  prosecuted  by  the 
)y  in  the  name  of  the  people 
f  of  such  recovery  shall  be 
rmer  and  the  residue  shall  be 
support  of  the  poor  in  the 
iich  recovery  is  had." 
Ally  person  or  persons  who, 
lef  raud  or  to  enable  another 
r  person,  shall  manufacture 
sell  or  expose  for  sale  or 
r  have  in  his  or  her  pos- 
tent  to  sell,  any  article  or 
d,  stamped  or  branded,  or 
:Iosed  in  any  box,  bottle  or 
ig  thereon  printed,  marked, 
fraved  any  word  or  words, 
ifadicating  or  denoting  or 
Indicate  or  denote  the  qual- 
;haracter  of  such  article  or 
do  not  truly  indicate,  denote 
3  quality,  grade  or  character 
or  articles,  shall,  uppn  con- 
be  deemed  guilty  of  'a  mis- 
for  each  such  offense  shall 
a  fine  of  $ioo,  to  ba  recov- 
I,  in  any  of  thv  courts  of  thi» 
B^izance  thereof,  in  an  action 
1  by  the  District  Attorney,  in 
i  people,  and  the  one-half  of 
haU  be  paid  to  the  informer 
shall  be  applied  to  the  sup- 
r  in  the  county  where  such 

rhis  act  shall  take  effect  im- 

t  was  passed  (Chapter  207)  in 
of  bottles  used  by  manufac- 
il  waters  and  others.  Regis- 
r  other  marks  was  allowed 
mended  by  Chapter  117  of 
A  new  and  more  extended 
May  14,  1875  (Chapter  303) 
3WS : 

rotect  the  owners  of  bcttles, 
sasks  and  syphons  used  in  the 
bers,  mineral  waters,  porter 
r  ale,  small  beer,  lager  beer, 
ther  similar  beverages." 
All  persons  and  corporations 
nanufacture,  bottling,  pack- 
■keta  or  o«aks,.or  in  tlie  sale 


(if  Boila  waters,  mineral  waters,  porter,  ule, 
cidor,  ;jinger  al",  small  beer,  lagur  bi«er, 
whitu  boor,  or  other  similar  tKweragos  in 
syphons  or  bottles  packed  in  boxes,  baskets 
or  casks,  or  unpacked  with  their  name  ur 
names  or  other  marks  or  devious  branded, 
stamped,  engraved,  etched,  blown,  im- 
presKPil  c>r  otherwise  produced  upon  such 
bottles,  syphons,  boxes,  baskets,  casks,  or 
upon  the  faucets,  stoppers,  corks  or  other 
thing  connected  therewith  and  appertain- 
ing thereto,  may  file  in  the  office  of  the 
clerk  of  the  county  in  which  the  princi- 
pal place  of  business  of  such  person  or  per- 
sons or  corporation  is  situated,  and  in  the 
office  of  Secretary  of  State,  a  description  of 
the  names  and  marks  so  used  by  theui  re- 
spectively, and  cause  such  description  to  be 
published  once  in  each  week  for  three  weoks 
successively  in  such  county,  except  the  city 
and  county  of  New  York  and  the  city  of 
Brooklyn,  in  the  county  of  Kings,  where 
each  ]>ubUcation  shall  be  made  for  the  same 
time  (Sundays  excepted)  in  two  daily  news- 
papers published  in  the  cities  of  New  York 
and  Brooklyn  respectively." 

"Section  2. — It  is  hereby  declared  to  be  un- 
lawful for  any  employee,  corporation,  per- 
son or  persons  hereafter,  without  the  writ- 
ten consent  of  the  person,  firm  or  corpora- 
tion, as  owner  thereof,  to  fill  with  soda 
water,  mineral  water,  porter,  ale,  cider, 
ginger  ale,  small  beer,  la^'er  beer,  white 
beer  or  other  beverages  any  such  syphon  or 
bottle  so  marked,  or  to  deface,  file  off,  turn 
off  or  by  other  means  obliterate  or  efface 
the  names,  marks  or  devices  thereon, 
with  intent  to  sell,  dispose  of,  buy  or 
traffic  in  any  such  syphons,  bottles,  boxes, 
baskets,  casks,  faucets,  stoppers,  corks  or 
other  thing  connected  therewith  or  apper- 
taining thereto,  so  marked,  branded,  stamp- 
ed, engraved,  etched,  blown,  impressed,  or 
otherwise  produced  thereon,  and  not  bought 
by  him,  her,  them  or  it  of  such  owner 
thereof.  Any  person  or  corporation  offend- 
ing against  the  provisions  thereof  shall  be 
deemed  guilty  of  a  misdemeanor,  and  shall 
forfeit  to  the  party  aggrieved  a  sum  not  ex- 
ceeding $25  for  each  and  every  offense." 

"Section  3. — The  fact  of  any  person  other 
than  the  rightful  owner,  without  such  writ- 
ten permission  as  aforesaid,  using'  such 
syphons,  bottles,  boxes,  baskets,  casks,  fau- 
cets, stoppers,  corks  or  other  thing  connect- 
ed therewith  or  appertaining  thereto,  or 
having  the  same  in  his,  her,  their  or  its 
premises  or  in  his,  her,  their  or  its  pos- 
session with  intent  to  sell  or  for  the  sale 
therein  or  thereby  of  any  soda  water,  min- 
eral water,  porter,  ale,  cider,  ginger  ale, 
small  beer,  lager  beer,  white  beer  or  other 
similar  beverage,  and  any  such  owner  or 
the  agent  of  such  owner  who  shall  make  oath 
or  affirmation  before  any  magistrate  that  he 
has  reason  to  believe  and  does  believe  that 
any  of  such  syphons,  boxes,  baskets,  casks, 
faucets,  stoppers,  corks  or  other  thing  con- 
nected therewith  and  appertaining  thereto. 


belonuing  to  him,  them  or  it,  marked, 
brinded,  stamped,  engraved,  etchei I,  blown, 
impressed  or  otherwise  produced  thert-on  and 
registered  as  aforesaid,  are  being  inilawfully 
used  by  any  corporation,  person  or  persons, 
selling  or  manufacturing  soda  water,  niiii- 
ei'al  water,  porter,  ale,  cider,  ginger  ale, 
snioll  beer,  lager  beer,  white  beer  or  other 
similar  beverages,  or  that  any  junk  dealer, 
manufacturer  or  vender  of  bottles,  boxes, 
baskets,  casks,  faucets,  stoppers  or  corks 
shall  have  any  of  such  syphons,  bottles, 
boxes,  baskets,  casks,  faucets,  stoppers  or 
corks  Ki-creted  upon  his  premises,  or  in  any 
other  place,  or  is  or  has  become  unlawfully 
possessed  thereof,  or  has  defaced,  filed  oft', 
turned  off,  or  by  other  means  obliterated  or 
effaced  the  names,  marks  or  devices  thereon 
or  on  any  of  the  same  with  unlawful  intent, 
then  the  said  magistrate  shall  thereupon 
proceed  to  obtain  the  same  under  the  exist- 
ing provisions  of  law  in  relation  to  search 
warrants,  which  are  hereby  declared  to 
fully  relate  to  the  purposes  of  this  act." 

"Section  4. — All  acts  and  pai*t8  of  acts  in- 
consistent herewith  are  for  the  pui-pose  of 
this  act  hereby  repealed. 

"Section  5 — This  act  shall  take  effect  imme- 
diately." 

tj  19. — In  Ohio  "An  act  (was  passed  March 
2g,  1859)  to  prevent  and  punish  fraud  in  the 
use  of  false  stamps,  brands,  labels  or  trade- 
marks." 

This  act  was  repealed  by  an  act  to  amend, 
revise  and  consolidate  the  statutes  relating 
to  crimes  and  offenses,  &c.,  passed  May  5, 
1877,  which  while  adopting  the  former  act  in 
the  main,  omitted  the  provision  in  regard 
to  punishment  by  fine  (one-half  to  complain- 
ant) of  any  vendor  of  spurious  goods  with 
false  stamps,  &c.,  knowing  them  to  be  false. 
Chapter  II,  Section  23  (act  of  May,  1877), 
provides  that  whoever  willfully  forges  or 
counterfeits  any  representation,  &c.,  of  the 
private  brand,  wrapper,  label  or  trade  mark 
usually  affixed  by  any  person  to  his  goods, 
"or  by  any  maker  .of  wines  from  grapes 
grown  within  this  State  to  the  bottles  or 
casks  used  by  him  to  contain  the  same,  with 
intent  to  pass  off  the  goods,"  &c.,  to  which 
such  forged  or  counterfeit  representation, 
&c.,  is  iUBxed  as  the  genuine  goods,  &c., 
shall  be  fined  not  exceeding  $500,  or  im- 
prisoned not  more  than  12  months  or  both. 

Section  24  provides  that  whosoever  has  in 
his  possession  any  die,  plate,  brand,  engrav- 
ing, printed  label,  stamp,  imprint,  wrapper 
or  trade  mark,  or  any  representation,  &c., 
thereof  for  the  purpose  of  making  impres- 
I  sions  or  selling  the  same  when  made,  or  using 
I  the  same  upon  spurious  goods  and  passing 
'.  same  off    as  genuine ;    or  wrongfully  and 
'  fraudulently  uses  the  genuine  stamp,  brand, 
'  imprint,  wrapper,  label  or  trade  mark  Mrith 
intent  to  pass  on  spurious  goods,  &c.,  as 
genuine,  shall  be  fined  not  more  than  $500 
or  imprisoned  not  more  than  12  months,  or 
both. 


10 


m 


mi  i 


m 


"  An  act  (was  passed  May  6,  1869)  to 
establish  a  cfKle  of  criminal  procedure  for 
the  State  of  Ohio,"  which  contained  at  Title 
I,  Section  13,  n  provision  as  to  aearcli  war- 
rants. This  and  following  sections  were 
incorporated  into  the  act  passed  May  5, 
1877,  given  above  as  Section  15,  of  Chapter 
I,  Title  II.  It  is  enacted  that  "  it  shall  be  law- 
ful for  any  magistrate  named  in  Section  i  to 
issue  warrants  to  search  any  house  or  place. 
*  *  *  2.  For  forged  or  counterfeit 
coins,  stamps,  labels,  trade  marks,  bank 
bills  or  other  instruments  of  writing." 

Provision  is  made  for  the  ei(ecution  of  the 
warrant ;  for  the  preservation  of  the  property 
as  evidence  ;  and  upon  conviction  of  the 
offender  the  destruction  of  the  trade  marks, 
&c. ,  dnder  direction  of  the  court. 

g  20. — Oregon  "An  act  (Oct.  21,  1864)  to 
provide  for  the  regulation  and  protection  of 
trade  marks."  Provides  for  the  registration 
of  trade  marks,  names  of  hotels  and  places 
of  business  in  the  office  of  the  Secretary  of 
State,  by  the  person  who  first  presents  same 
for  record.  Fee,  $2.50.  It  also  provides  that 
any  person  who  shall  use  any  name,  mark, 
&.C.,  the  same  or  similar  to  one  so  recorded 
for  the  purpose  of  deception  or  profit,  shall 
forfeit  to  the  use  of  the  owner  of  the  mark, 
&c.,  one-half  of  the  property,  goods  or  arti- 
cles of  trade  upon  whicu  the  same  may  be 
used  or  placed,  or  the  value  thereof,  for 
first  offense,  and  the  whole  for  second  of- 
fense. 

It  provides  for  same  remedy  in  case  af 
articles  imported  into  State.  Also,  that  any 
person  who  shall  use  any  second-hand  sack, 
l>ox,  barrel,  can,  package,  or  other  article 
on  which  has  been  placed  any  name,  mark, 
&c.,  the  property  of  another,  for  the  pur- 
pose of  description,  shall  be  liable  to  the 
same  forfeiture  of  property  inclosed  therein. 
This  act  does  not  affect  the  power  of  courts 
of  equity  to  grant  injunctions  against  im- 
proper use  of  any  mark.  &c.,  "  which  may 
have  been  secured  by  the  provisions  of  this 
chapter." 

In  addition  to  the  above  act  the  Criminal 
Code  of  1864,  which  took  effect  May  i,  1865 
Section  583)  provides  that  if  any  person 
shall  willfully  and  knowingly  use  or  cause 
to  be  used  any  private  brand,  label,  stamp 
or  trade  mark  of  another,  or  any  colorable 
imitation  thereof,  with  int«nt  to  deceive  any 
one,  such  person  shall  be  punished  by  im- 
prisonment in  the  county  jail  not  less  than 
one  month  nor  more  than  six  months,  or  by 
fine  not  less  than  $20  nor  more  than  $300. 

g  21. — In  Pennsylvania,  as  early  as  March 
3,  1847  (Laws  No.  149),  an  act  was  passed 
''  to  punish  and  prevent  frauds  in  the  use  of 
false  stamps  and  labels."  This  was  amended 
in  1855  (May  8,  Law  No.  534),  and  finally 
incorporated,  with  slight  changes,  into  an 
act  to  consolidate  the  penal  law,  March  31, 
i86e,  sections  173,  174  and  175  (Brightley's 
Digest,  10  ed.,  p.  365).    By  the  act  of  i8i6o 


'  it  is  provided  that  if  any  one  shall  knowiuKl 
and  willfully  forge  or  counterfeit  any  ropn 
sentation,  &c.,  of  the  private  stamps,  wra| 
pors  or  labels  of  any  mechanic  or  manufai 
turer,  with  intent  to  deceive  or  def rauil  th 
purchaser  or  manufacturer  of  any  goodt 
wares  or  merchandise,  s^ich  person  shall 
guilty  of  a  misdemeanor,  and  punishable 
a  fine  not  exceedinfr  i^ioo  and  an  imprison 
ment  not  exceeding  two  years.  Also,  tha 
if  any  person  shall  have  in  his  possessioi 
any  die,  plate,  engraving  or  printed  label 
stamp  or  wrapper,  or  any  representation 
&c.,  of  such  of  any  mechanic  or  manufac 
turer,  with  intent  to  use  or  sell  the  said  die 
&c  ,  for  the  purpose  of  aidmg  or  a».sisting  : 
vending  any  goods,  wares  or  ir.erchandisi 
intended  to  imitate  or  to  be  sold  for  the  gen 
nine,  he  shall  be  guilty  of  a  misdemeanor 
j  with  the  same  punishment.  Also,  that  i 
I  any  person  shall  vend  any  goods,  wares  o) 
I  merchandise  having  thereon  any  forged  oi 
counterfeited  stamps  or  labels  of  any  me 
chanic  or  manufacturer,  knowing  them  to  b< 
forged  or  counterfeited,  and  resembling  01 
purporting  to  be  imitations  of  the  genuini 
stamps,  without  disclosing  the  fact  to  th( 
purchaser,  shall  be  guilty  of  a  misdemeanoi 
and  be  fined  not  exceeding  $500. 

Manufacturers  and  makers  of  mineral 
waters  and  other  beverages  in  bottles  "  im- 
pressed "  with  mark,  were  protected  by  laws 
passed  in  1849  providing  for  registry,  &c. 
(Laws  of  1849,  pp_.  524-680).  A  supplement 
to  these  acts  was  approved  April  20,  1853, 
(Laws  p.  643,  Brightley's  Digest  10  ed.,  p. 
1405.)  It  is  provided  that  they  may  file  in  th« 
office  of  the  secretary  of  the  commonwealth 
a  description  of  such  bottles,  and  of  the  name 
or  marks  thereon,  and  publish  the  sttme  for 
six  weeks  successively  in  a  daily,  weekly  or 
I  other  newspaper  published  in  the  county 
wherein  the  same  shall  be  manufactured  or 
sold,  except  in  Philadelphia,  where  publi- 
cation should  be  made  for  some  time  in  two 
daily  newspapers.  It  is  declared  to  be  un- 
lawful for  any  person  or  persons,  without  the 
permission  of  the  owner,  to  fill  with  mineral 
waters  or  other  beverages  any  bottles  so 
marked,  or  to  sell,  disix>se  of,  or  to  buy  or  to 
traffic  in  any  such  bottles  so  marked  and  not 
bought  by  him  of  such  owner  thereof ;  and 
every  offender  shall  be  liable  to  a  penalty  of 
50  cents  for  each  bottle  so  filled  or  sold  or 
used  or  disposed  of,  or  bought  or  trafficked  in, 
for  the  first  offense  and  of  I5  for  every  sub- 
sequent offense. 

*'  The  fact  of  any  person,  other  than  the 
rightful  owner  thereof,  using  any  such  bot- 
tles for  the  sale  therein  of  any  beverage,  shall 
be  prima  facie  proof  of  the  unlawful  use  or 
purchase  of  such  bottles  as  aforesaid."  Any 
owner  or  agent  of  the  owner  of  bottles  duly 
stamped  and  registered,  may  make  oath  be- 
fore any  alderman  or  justice  of  the  peace 
that  he  has  reason  to  believe,  and  believes, 
that  said  bottles  are  being  unlawfully  used 
or  concealed  by  any  person  selling  or  manu- 
facturing mineral  water  or  other  beverage, 


11 


hat,  if  nnyoneHliall  knowingly 
jrgc  or  counterfeit  any  rnpre- 
of  the  private  stanipH,  wrap- 
f  any  mechanic  or  inanufac- 
ent  to  deceive  or  defraud  the 
manufacturer  of  any  )f"ods. 
mndiHo,  s'lch  person  shall  be 
ienieanor,  and  punishable  by 
?din/r  |ioo  and  an  iniprison- 
idin^f  iwo  years.  Also,  that 
shall  have  in  his  possession 
engraving  or  printed  label, 
)per,  or  any  representation, 

any  mechanic  or  manufac- 
mt  to  use  or  sell  the  said  die, 
rpose  of  aiding  or  a>,sisting  in 
oods,  wares  or  merchandise 
bate  or  to  be  sold  for  the  gen- 
)e  guilty  of  a  misdemeanor, 

punishment.     Also,  that  if 
II  vend  any  goods,  wares  or 
iving  thereon  any  forged  or 
tamps  or  labels  of  any  me- 
'acturer,  knowing  them  to  be 
terfeited,  and  resembling  or 
e  imitations  of  the  genuine 
b  disclosing  the  fact  to  the 
I  be  guilty  of  a  misdemeanor 
;  exceeding  $500. 
8    and    makers    of  mineral 
r  beverages  in  bottles  "  im- 
iark,  were  protected  by  laws 
providing  for  registry,  &c. 
jp,.  524-680).    A  supplement 
'as  approved  April  20,  1853, 
Jrightley's  Digest  10  ed.,  p. 
ided  that  they  may  file  in  th« 
•etary  of  the  commonwealth 
such  bottles,  and  of  the  name 
on,  and  publish  the  s^me  for 
jsively  in  a  daily,  weekly  or 
>r    published   in  the  county 
ne  shall  be  manufactured  or 
Philadelphia,  where    publi- 
made  for  some  time  in  two 
8.     It  is  declared  to  be  un- 
erson  or  persons,  without  the 
3  owner,  to  fill  with  mineral 
■  beverages  any  bottles    so 
ill,  dis{)ose  of,  or  to  buy  or  to 
:h  bottles  so  marked  and  not 
of  such  owner  thereof ;  and 
ball  be  liable  to  a  penalty  of 
1  bottle  so  filled  or  sold  or 
of,  or  bought  or  trafficked  in, 
ase  and  of  $5  for  every  sub- 
any  person,  other  than  the 
hereof,  using  any  such  bot- 
herein  of  any  beverage,  shall 
roof  of  the  unlawful  use  or 
bottles  as  aforesaid."    Any 
»f  the  owner  of  bottles  duly 
istered,  may  make  oath  be- 
m  or  justice  of  the  peace 
on  to  believe,  and  believes, 
are  being  unlawfully  used 
wy  person  selling  or  manu- 
al water  or  other  bevera^je, 


and  said  alderman,  &c.,  shall  thureu)Hin 
issue  a  process  in  the  nature  of  a  search 
warrant,  &c.,  and  if,  ujMm  snarcli.  any  hot- 
ties  so  marked  shall  be  found,  to  bring  the 
same,  together  with  the  body  of  the  person 
in  whose  possession  they  may  be  found,  be- 
fore said  alderman,  &c.,  there  to  be  dealt  with 
according  to  law. 

In  1865  another  act  was  passed  for  the 
benefit  of  manufacturers  of  malt  liquors 
(approved  April  4 ;  Laws,  p.  58).  It  pro- 
vides that  any  person  engaged  in  the  manu- 
facture of  malt  liquors  for  sale  in  butts, 
hogsheads,  barrels,  half  barrels,  casks,  half 
casks,  quarter  casks  or  kegs,  with  hit  name 
or  other  privatie  mark  branded  or  stamped 
thereon,  may  file  in  the  office  of  the  protho- 
notary  of  the  county  in  which  such  articles 
shall  be  manufactured,  a  description  of  the 
names  or  makes,  and  cause  the  same  to  ne 
published  once  a  week  for  six  weeks  in  a 
newspaper  of  the  county,  but  in  the  city  of 
Philadelphia  in  two  daily  newspapers  for 
same  time. 

It  is  declared  to  be  unlawful  for  any  one, 
other  than  the  lawful  owner,  to  fill  with  luult 
liquor,  or  to  use,  traffic  in,  purchase,  sell, 
dispose  of,  detain,  convert,  mutilate  or  de- 
stroy, or  «'illfully  or  unreasonably  refuse  to 
return  or  deliver  to  such  owner,  on  demand, 
any  such  butt,  &c.,  or  tu  remove,  cut  off, 
deface  or  obliterate,  or  to  brand  or  stamp 
other  brands  or  stamps  on  the  same,  with- 
out the  written  permission  of  such  original 
or  lawful  owner  thereof,  or  unless  there 
shall  have  been  a  sale  in  express  terms  of 
such  article,  exclusive  of  the  malt  liquors 
therein,  to  such  person  by  the  lawful 
owner ;  any  person  so  offending  shall  he 
deemed  guilty  of  a  misdemeanor,  to  lie  pun- 
ished for  the  first,  offense  by  a  fine  of  $10  for 
each  butt,  &c.,  so  filled  and  trafficked  in, 
purchased,  sold,  &c.,  and  by  a  fine  of  $20, 
and  imprisonment  in  a  county  jail  for  not 
less  than  one  and  not  more  than  thr'>e 
months,  for  each  subsequent  offense  (one- 
half  to  officer  making  arrest). 

There  is  also  a  provision  for  issue  of  search 
warrant  and  arrest  similar  to  that  iu  the 
oase  of  bottles  inven  above. 

In  1870  (April  9)  it  was  enacted  (for  the 
city  of  Philadelphia  only)  that  any  person  who 
shall,  without  the  permission  of  the  owner,  fill 
with  mineral  water,  or  any  other  article!,  any 
bottle  marked  and  registered  as  aforesaid,  or 
shall  sell  or  buy  or  traffic  in  or  use  or  dispose 
of,  any  such  bottles  for  gain,  convenience 
or  profit,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  liable  to  a  fine  not  exceeding 
I500,  or  imprisonment  not  exceeding  six 
months.  "  The  using  by  any  other  person 
than  the  rightful  owners  of  such  bottles  as 
aforesaid  shall  be  prima  facie  proof  of  the 
unlawful  dealing  in  or  using  said  bottles. " 

In  1871  (May  25)  the  act  of  April  9,  1870, 
was  extended  to  the  counties  of  Northamp- 
ton, Lehigh,  Bucks,  Carbon  and  Monroe. 

In  1876  (May  5)  it  was  enacted  that  the 


certificate  of  the  Secretary  of  the  Common- 
wealth under  seal  should  b<>  conclusive 
evidence  of  the  publication  marking  and 
registering  of  mineral  water  and  other 
bottles. 

5?  22. — Sections  186  and  187  of  the  Penal 
Code  of  Utah  (Compili'd  I^aws  of  1876,  p  608) 
provide  that  every  person  who  willfully 
forges  or  counterfeits  a  trade  mark  with  in- 
tent to  pass  off  any  goods  to  A'hich  such  forged 
mark  is  afflxoil  as  the  genuine  goods,  and 
"  every  person  who  sells  or  keeps  for  sale 
any  g(x>ds  upon  which  such  counterfeited 
trade-mark  has  been  affixed,  intending  to 
represent  such  goods  as  the  genuine  goods 
of  another,  knowing  the  same  to  be  counter- 
feited, is  guilty  of  a  misdemeanor." 

Section  190  provides  that  every  person 
who  has  or  uses  any  bottle  or  other  thing 
bearing  the  duly  filed  trade  mark  or  name 
of  another,  for  the  purpose  of  disposing, 
with  intent  to  deceive  or  defraud,  of  any 
article  other  than  that  which  such  bottle, 
&c.,  originally  contained,  is  guilty  of  a  mis- 
demeanor. By  Section  17  of  the  Penal 
Code  a  misdemeanor  it  punishable  by  im 
prisonment  in  a  county  jail  not  exceeding 
jix  months,  or  by  a  fine  not  exceeding  $300, 
or  by  both. 

The  definition  of  trade-mark  contained  in 
tiie  Political  Code  of  California  is  copied  iu 
section  i8q  of  the  Penal  Code  of  Utah. 

J5  23. — The  foregoing  abstract  of  the  laws 
of  the  States  is  the  best  argument  in  favor  of 
a  uniformity  of  action  among  all  trade-mark 
owner)!.  Particular  classes  of  trade-mark 
owners  have  obtained  special  prot«ction,  e. 
{/..  manufacturers  and  venders  of  mineral 
water  and  other  beverages,  flour,  watches, 
wines,  &c.  But  these  laws  only  exist  in  a 
few  States.  Marks  on  watches  are  pro- 
tected by  an  act  in  Massachusetts ;  marks 
on  receptacles  of  wine  made  from  grapes 
grown  in  Ohio  are  similarly  protected  there. 
The  sa>ue  may  be  said  of  flour  marks  in 
Missouri. 

In  certain  (States  it  is  made  obligatory  to 
mark  certain  articles,  >•.  g.,  in  New  York, 
by  act  i860,  every  person  who  shall  put  uji 
and  press  hay  for  market  shall  mark  the 
initials  of  his  name  on  some  piece  of  wood 
attached  to  the  bale  of  hay,  and  by  act  of 
1865,  every  manufacturer  of  butter  firkins 
is  required  to  brand  the  same  with  his  name 
and  the  true  weight  of  the  firkin. 

In  Ohio  it  was  provided  that  the  weight 
of  soap  and  candles  and  the  name  of  the 
manufacturer  must  be  marked  on  the  b6z  : 
marks  were  also  obligatory  on  packages  of 
sugar,  rice,  tobacco,  &c.  In  New  Jersey 
(1877)  trade-marks  on  packages  of  commer- 
cial manures  are  obligatory. 

In  South  Carolina  many  articles  are  enu- 
merated in  the  Revised  Statutes  of  1873, 
subject  to  inspection,  and  to  which  marks 
and  names  must  be  afiSzed. 


m 


ftu 


CHAPTER  II. 


"  ^v.. 


§  r.  California. — It  was  held  in  Woodward 
vs.  Lazar  (2 1  C'al. ,  448, 1 863),  that  the  name  of 
a  hotel  is  a  trade-mark  in  which  the  proprie- 
tor has  a  valuable  interest,  which  a  court  of 
chancery  will  protect.  A  tenant  giving  a 
particular  name  to  a  building,  as  a  sign  of 
the  hotel  business,  for  which  he  uses  it,  does 
not  thereby  make  the  name  a  fixture  of  the 
building  and  the  property  of  the  landlord 
upon  the  expiration  of  the  lease. 

In  Derringer  vs.  Plate  (29  Cal.,  292,  1865), 
that  the  right  of  property  in  a  trade-mark 
is  recognized  by  the  common  law,  and  is 
not  limited  by  territorial  bounds.  The  Cali- 
fornia .statute  of  1863,  concerning  trade- 
marks, does  not  take  away  from  those  who 
do  not  register  their  trade-mark  according 
to  its  provisions  their  common  law  remedy. 

In  Falkinburg  vs.  Lucy  (35  Cal.,  52,  1868), 
that  by  the  terms  "  peculiar  name,  letters, 
marks,  devices,  figures,  or  other  trade- 
mark or  name,"  as  used  in  the  statute 
concerning  trade-marks  (Hittel's  Laws,  Art. 
7134),  is  not  meant  the  established  and  pro- 
per names  by  which  the  "  articles"  to  which 
they  are  attached  and  by  which  they  are 
known  in  the  market,  nor  something  indi- 
cating their  actual  kind  or  quality,  but  some- 
thing new — not  before  in  use — intrinsi- 
cally foreign  to  the  "  articles  "  themselves, 
and  which  only  serves  to  designate  them  be- 
oaue  it  has  been  fancifully  put  to  that  use, 
in  disregard  of  all  natural  relations.  In  this 
case,  plaintiff's  alleged  trade-mark  consisted 
of  a  highly  colored  picture  of  a  wash  room, 
&c. ,  with  the  following  legend  interblended 
with  it :  "  Standard  Soap  Company,  Erasive 
Washing  Powder,"  followed  by  directions 
for  the  use  of  the  "  washing  powder,"  and 
the  place  of  manufacture.  The  alleged  imi- 
tation consisted  of  a  label  (with  picture) 
which  was  the  same  as  the  plaintiffs  only  in 
the  use  of  the  words  "washing  powder," 
the  directions  for  the  use  of  the  powder  and 
the  color  of  the  paper.  Injunction,  in  court 
below,  restraining  defendant  from  the  use 
of  his  label,  was  dissolved. 

In  Choynski  vs.  Cohen  (39Cal.,  joi,  1870), 
it  was  decided  that  "Antiquarian  Book 
Store  "  is  descriptive,  and  therefore  not  a 
trade-mark. 

In  Qraham  vs.  Plate  (40  Cal.,  593,  1871), 
that  the  profits  realized  by  defendant  from 


sales  of  the  spurious  article  under  the  ttimu- 
lated  trade-mark,  is  a  proper  measure  of 
damages,  but  the  recovery  of  the  plaintiff  is 
not  limited  to  the  amount  of  such  profits. 

Burke  vs.  Cassen  (45  Cal.,  467,  1873), 
was  an  action  brought  to  restrain  defendants 
whose  label  read  as  follows  :  "  Van  Wolf's 
Aromatic  Schiedam  Schnapps.  A  superior 
tonic,  anti-dyspeptic  and  mvigorating  cor- 
dial. This  wholesome  beverage,"  &o. 
Plaintiff's  label  read  :  "  Wolfe's  Aromatic 
Schiedam  Schnapps.  A  superlative  tonic, 
diuretic,  anti-dyspeptio  and  invigorating 
cordial.  This  medicinal  beVerage,"  &c. 
The  description  in  either  case  was  slightly 
different.  Because  the  words  "  Aromatic 
Schiedam  Schnapps  "  were  merely  descrip- 
tive of  the  article,  (Schnapps  meaning  gin 
and  Schiedam  being  the  name  of  the  place 
where  manufactured,)  an  injunction  was 
only  granted  against  the  use  of  the  name 
"  Wolfe  "or  "  Van  Wolf,"  or  any  colorable 
imitation  of  the  name  Wolfe,  or  plaintiff's  la- 
bel. The  Court  said  that  a  label  at  common 
law  is  not  a  trade-mark,  but  when  a  manofao- 
turer  or  seller  of  goodsadopts  alabel  to  distin- 
guish his  goods  from  those  of  another,  he  is  en- 
titled to  be  protected  in  its  use,  and  others 
will  be  enjoined  from  using  tiie  aame  or  a 
colorable  imitation  thereof. 

§  2.  Connecticut. — In  Bradley  vs.  Norton  (33 
Conn.,  157,  1865),  it  was  decided  that  the 
exclusive  right  to  a  trade-mark  is  a  species  of 
properly  recognized  by  law.  The  imitation 
of  a  trade-mark,  which  will  constitute  an  in- 
fringement of  this  right,  need  not  be  a  pre- 
cise copy  of  the-  original ;  if  there  is  a  sub- 
stantiail  similarity,  so  th'\t  the  community 
would  be  likely  to  be  deceived,  it  is  sufBoient. 
In  Boardman  vs.  Ueriden  Britannia  Co. 
(35  Conn.,  402,  1868),  the  defendants  used 
labels  similar  in  arrangement  to  those. of 
plaintiff,  but  substituted  their  own  names  for 
that  of  plaintiff.  Thus :  "  1-2  Qross  L.  Board- 
man's  No.  2340  Wire  Strengthened,  French 
Tipped  Tea  Spoons."  "  i-a  Oross  Heriden 
Britannia  Co. 's  No.  2340  Wire  Strengthened, 
French  Tipped  Tea  Spoons."  The  principu 
feature  of  the  label  (not  in  nie  of  type)  waa 
the  numerals  designating  the  kind  of 
■poon  contained  in  the  package.  Defend- 
ants were  enjoined.   The  decree  in  this  case 


ft 


14 


was' the  Rubject  of  review.  36  Conn.,  307, 
1869.  In  HofmeB,  Booth  &  Haydens  vs.  The 
Holmes,  Bmith &  Atwood  Mfg.  Co.  (37 Conn., 
278,  1870),  it  was  held  that  when  the  name 
of  a  manufacturing  corporation  designates 
the  origin  and  ownership  of  goods  manufac- 
tured by  it,  it  will  be  protected  in  the  use  of 
its  name  to  the  same  extent  and  upon  the 
same  principle  that  individuals  will  be  pro- 
tected in  the  use  of  trade-marks.  Defend- 
ant corporation  was  enjoined  against  the 
use  of  its  name. 

Meriden  Britannia  Co.  vs.  Parker  (39  Conn., 
4S0,  1872).  The  plaintiffs  had  in  their  em- 
"'oy  three  brothers  by  the  name  of  Rogers, 
•  ho  had  formerly,  from  1847,  manufactured 
spoons  on  their  own  acctihnt  and  stamp«d 
them  "  Rogers."  They  entered  the  plain- 
tiffs'employment  and  stamped  spoons  "  1847, 
Rogers  Bros.,  A  i."  Defendant  acquired 
the  right  from  other  brothers  named  Rogers, 
not  in  his  employ,  to  stamp  their  name  on 
spoons.  He  stamped  hia  spoons  "  C.  Rogers 
Bros.,  A  I,"  and  '•  C.  Rogers  &  Bros.,  A  i," 
and  was  enjoined.  The  court  declined  to 
enjoin  the  name  "  Rogers  "  when  used  alone. 

g  3.  Georgia, — In  Ellis  vs.  Zeilin  (42  Qa., 
91.  1871),  the  plaintiff  claiming  proprietor- 
ship of  a  medicinal  preparation,  "  Dr. 
Simmon's  Liver  Regulator  or  Medicine," 
filed  a  bill  against  defendants,  alleging 
tiiat  they  sold  a  preparation  called  ' '  Sim- 
mon's Qenuine  Liver  Medicine."  put  up 
in  packages  similar  in  form  and  size  to 
his,  to  take  advantage  of  the  reputa- 
tion of  his  medicine.  Defendants  demurred, 
thus  admitting  the  allegations  of  the  bill 
to  be  true.  Their  demurrer  was  overruled 
and  an  injunction  directed  to  issue.  On  ap- 
peal, judgment  affirmed.  The  court  say : 
''  In  matters  of  trade-mark  we  lay  down  the 
rale  to  be,  that,  in  order  to  authorize  the  in- 
terposition of  a  court  of  equity,  the  title  to 
the  use  and  enjoyment  must  be  clear  and 
unquestionable,  and  will  be  adjudicated  only 
upon  the  rights  of  parties  before  the  court 
and  as  between  their  conflicting  c'^aims,  and 
not  with  a  view  to  the  guardianship  of  the 
public  upon  the  merits  or  demerits  of  nos- 
trums, except  in  cases  where  injury  to  the 
public  health  or  morals  enters  into  the  ingre- 
dients of  the  allegations." 

§  4.  niinois.—  Candee  vs.  Deere.  (54,  ID. 
439, 1870.)  The  plaintiffs  were  manufacturers 
of  plows  at  Moline,  III.,  and  claimed  as 
their  trade-mark  the  words  "  Moline  Plow," 
which  they  used  in  their  circulars,  price  lists 
and  advertisements,  but  did  not  place  upon 
the  articles  manufactured.  Defendants 
made  the  same  use  of  these  words.  It  was 
held  that  "  Moline  Plow  "  did  not  become 
plaintiff's  trade-mark,  because  not  affixed 
to  tihe  articles  manufactured,  and  because 
the  words  were  a  generic  term  indicating 
the  place  at  which  the  plows  were  made. 
The  [daintiA  stenciled  on  their  plow  bwuns 


the  words  "John  Deere"  in  large  heavy 
capitals  in  the  segment  of  a  circle,  and  the 
words  "  Moline,  111.."  in  a  straight,  hori- 
zontal line  undemeatn,  in  smaller  capitals. 
Defendants  stenciled  the  words  "Candee, 
Swan  &  Co."  in  smaller  capital  letters  on  a 
segment  of  a  circle,  at  loast  a  inches  longer 
than  that  of  "  John  Deere,"  and  the  address 
"  Moline,  111,,"  in  atill  smaller  capital  let- 
ters, on  a  straight,  horizontal  line  under- 
neath. Held  that  while  there  was  some  re- 
semblance between  these  brands,  there  was 
no  such  similarity  as  would  show  that 
"  Candee,  Swan  &  Co."  intended  thereby  to 
sell  their  plows  as  plows  manufactured  by 
"  John  Deero." 

Plaintiff  claimed  the  use  of  the  word 
"Holbrook"as  a  trade-mark,  invented  or 
arranged  by  one  Josiah  Holbrook,  who  al- 
lowed different  persons  in  different  places  to 
manufacture  school  apparatus  under  the 
same  name  for  20  years  before  the  plaintiff 
began  to  use  the  name ;  it  was  held  that 
"  Holbrook  "  had  become  a  genuine  name. 
Sherwood  vs.  Andrews,  $  Ajm.  Law  Roir., 
N.  S.,  588  ;  Superior  Court  of  Chicago,  1866. 

8  5.  Indiana. — Sohl  vs.  Geisendorf  (i  Wil- 
son's Sup.  Ct.,  60.  1871.)  Plaintiffs  pur- 
chased a  trade-mark,  mark  or  label  for 
flour  in  this  fqrm  :  "  White  Rose  Mills," 
"Snowflake,"  "Sohl,  Wild  &  Co."  They 
substituted  their  own  firm  name  of  "  Sohl, 
Gibson  &  Co."  ,  Held  that  their  title  to 
whole  mark  or  litbel  was  good.  It  is  an  in- 
fringement of  a  trade- mark,  even  though 
the  imitation  and  original,  when  placed  side 
by  side,  would  not  mislead,  if  the  similarity 
is  such  that  a  difference  would  not  be  no- 
ticed when  seen  at  different  times  or'.places. 

§  6.  Kentucky. — Laird  vs.  Wilder  (9  Bush, 
131,  1872).  Defendant  unwarrantably  ad- 
opted, to  mislead  the  public,  the  design  of  the 
bottle  and  the  label  of  plaintiff's  prepara- 
tion. The  imitation  was  so  nearly  exact  as 
to  be  well  calculated  to  produce  the  desired 
effect.  The  plaintiff  put  his  compound  upon 
the  market  with  the  express,  as  well  as  im- 
plied, assurance  that  it  was  "  free  from  all 
mineral  and  poisonous  substances "  The 
evidence  showed  that  it  containedpoisonous 
substances.  Injunction  refused.  Harden,  J. 
said  :  "  To  a  party  thus  presenting  himself, 
a  court  of  equity,  adhering  to  the  maxim  that 
'  he  who  asKS  equity  must  come  with  pure 
hands,'  will  not  lend  its  aid  when  the  object 
to  be  effected  is  to  secure  him  the  exclusive 
privilege  of  deceiving  the  public  in  a  partic- 
ular way,  although,  in  doing  so,  it  might 
prevent  another  equally  guilty  from  commit- 
ting the  same  wrong." 

§  7.  Louisiana. — Wolfe  vs.  Bamett  &.  Lyon 
(24  A.,  97,  1872).  Plaintiff  claimed  as  a 
trade-mark — "  Wolfe's  Aromatic  Schiedam 
Schnapps."  Defendants'  labels  were  color- 
able imitations  of  those  of  plaintiff.    The 


lin  Deere  "  in  lar^e  hoav  y 
segment  of  a  circle,  and  th  o 
,  111.."  in  a  straight,  hori- 
moatn,  in  inialler  capitals, 
iciled  the  words  "Candee, 
smaller  capital  letters  on  a 
'cle,  at  l^ast  2  inches  longer 
ohn  Deere,"  and  the  address 
in  otill  smaller  capital  let- 
^ht,  horizontal  Hue  under- 
at  while  there  was  some  re- 
aen  these  brands,  there  was 
rity  as  would  show  that 
&  Co."  intended  thereby  to 
as  plows  manufactured  by 

ned  the  use  of  the  word 
a  trade-mark,  invented  or 
e  Josiah  Holbrook,  who  al- 
persons  in  different  places  to 
ihool  apparatus  under  the 
!0  years  before  the  plaintiff 
;he  name ;  it  was  helil  that 
d  become  a  genuine  name. 
(Andrews,  5  Ajm.  I^aw  Beg., 
erior  Court  of  Chicago,  1866. 

— Sohl  vs.  Geisendorf  (i  Wil- 
60.  1871.)  Plaintiffs  pur- 
-raark,  mark  or  label  for 
rm:  "White  Rose  Mills," 
'Sohl,  Wild  &  Co."  They 
p  own  firm  name  of  "  Sohl, 
.  Held  that  their  title  to 
itbel  was  good.  It  is  an  in- 
i  trade- mark,  even  though 
d  original,  when  placed  side 
tot  mislead,  if  the  similarity 
ifference  would  not  be  no- 
at  different  times  onplaces. 

'. — Laird  vs.  Wilder  (0  Bush, 
fendant  unwarrantably  ad- 
1  the  public,  the  design  of  the 
label  of  plaintiff's  prepara- 
ition  was  so  nearly  exact  as 
iated  to  produce  the  desired 
intiff  put  his  compound  upon 
1  the  ezj>res8,  as  well  as  im- 
that  it  was  "  free  from  all 
oisouous  substances  "  The 
1  that  it  containedpoisonous 
unction  refused.  Harden,  J. 
.rty  thus  pi-esenting  himself, 
,  aidhering  to  the  maxim  that 
quity  must  come  with  pure 
lend  its  aid  when  the  object 
to  secure  him  the  exclusive 
living  the  public  in  a  partic- 
ugh,  in  doing  so,  it  might 
equally  guilty  from  commit- 
•ong." 

. — ^Wolfe  vs.  Bamett  &  Lyon 
2).  Plaintiff  claimed  as  a 
Volfe's  Aromatic  Schiedam 
Feridants'  labels  were  color- 
of  those  of  plaintiff.    The 


15 


court  said  :  "  It  is  in  vain  to  urge  that  the 
several  words  of  plaintiff's  trade-nmrk  are 
not  now.  His  combination  of  the  words  was 
new,  and  indicates  the  origin  and  owner- 
s' :p  of  the  liquor,  and  the  defendants  have 
no  right  to  filch  this  combination,  or  any 
important  part  of  it,  in  such  a  way  as  to 
mislead  the  purchaser  as  to  the  ruul  origin 
and  ownership."  Defendants  had  used  their 
labels  for  ten  years.  Held,  no  defense.  In- 
junction.    Damages. 

§  8.  Maryland. — Stonebraker  vs.  Stone- 
bruker  (33  Md.,  252,  1870).  Brent,  J.,  said  in 
this  case  :  "  While  a  party  has  the  right  to 
manufacture  and  sell  any  article  he  may 
please,  not  protected  by  letters  patent 
granted  to  another,  he  has  no  right  to  use 
the  trade-marks  or  names  previously  adopted 
and  used  by  another  trader,  and  induce 
thereby  the  public  to  believe  the  articles 
sold  are  another  manufacture.  Trade- 
marks are  property,  and  as  such  the  title  to 
them  will  receive  the  protection  of  the 
courts.  If  used  by  another  without  the  au- 
thority or  sanction  of  the  owner,  he  will  be 
restrained  by  injunction,  and  that  even 
when  it  does  not  happen  that  there  was  any 
fraudulent  intent  in  their  use.  He  will 
also  be  held  to  account  for  the  profits  derived 
from  the  unauthorized  use  of  such  trade- 
marks." Plaintiff's  marks  were  :  "Stone- 
braker's  Nerve  and  Bone  Liniment,"  &c.  T^  ' 
defense  was  interposed  that  plaintiff  had  as- 
sumed, without  warrant,  the  title  of  Doctor 
of  Medicine,  and  thereby  deceived  the  pub- 
lic, who  had  bought  his  medicines  supposing 
him  to  be  a  doctor.  This  was  overruled,  as 
also  the  defense  that  defendant  Stonebraker 
had  the  right  to  use  his  own  name.  The 
bill  alleged  that  defendants  had  employed 
defendant  Stonebraker  for  no  other  reason 
than  that  his  name  was  Stonebraker.  The 
Court  said  that  "Dr.  Stonebraker  had  a 
right  to  enter  into  an  agreement  with  Messrs. 
Passano  &  Clothworthy  (codefendants),  or 
anybody  else,  to  manufacture  and  sell  his 
own  medicines,  but  he  had  no  right  to  lend 
or  sell  his  name  to  perpetrate  an  injury 
upon  his  brother  and  a  fraud  upon  the  pub- 
lic. The  evidence  shows  that  the  whole 
agreement  between  the  parties  was  but  a 
combination  to  deceive  the  public." 

In  WitthauB  vs.  Mattfeldt  (44  Md.,  303, 
1875),  th3  Court  said:  "The  mere  sale  of 
a  trade-mark,  apart  from  the  article  to 
which  it  is  affixed,  confers  no  right  of  owner- 
ship, because  no  one  can  claim  the  right  to 
sell  his  goods  as  goods  manufactured  bv  an-,| 
other.  To  permit  this  to  be  done  would  be 
a  fraud  upon  the  public.  But  when  the 
trade-mark  is  assigned  to  the  person  who 
manufactured  the  tobacco  to  which  the  trade- 
mark was  affixed,  there  is  no  false  repre- 
sentation to  the  public,  because  the  tobacco 
is  still  manufactured  at  the  same  place,  and 
by  the  same  person."    To  justify  the  issue 


of  an  injunction  the  title  of  plaintiff  sliould 
be  clear. 

g  g.  Massachusi'tls. — Thomson  vs.  Win- 
chester (iq  Pick,,  214,  1837).  If  the  defend- 
ant mode  and  sold  medicines,  calling  them 
"  Thomsonian medicines, "and sold  them,  or. 
placed  them  in  the  hands  of  others  to  sell,  as 
and  for  the  medicines  made  and  prepared  by 
the  plaintiff,  the  plaintiff  will  be  entitled  to 
recover  damages.  Ifthe  word  "Thomsonian" 
had  acquired  a  ge  nerlc  meaning,  descriptive 
of  a  general  kind,  quality  and  '^lass  of  medi- 
cines, although  the  plaintiff  was  the  inven- 
tor, he  had  no  exclusive  right  to  compound 
them,  not  having  a  patent,  and  no  exclusive 
right  to  the  use  of  the  name.  It  made  no 
difference  that  the  defendant  put  up  an  in- 
ferior medicine  under  the  name  "Thomso- 
nian "  if  he  did  not  sell  it  as  and  for  the 
medicine  of  the  plaintiff. 

Marsh  vs.  Billmgs  (7  Cush.,  323,  1851)  In 
this  case  it  was  held  that  plaintiff,  a  com- 
mon carrier,  with  an  exclusive  license  from 
the  "Revere  House  "  to  use  its  name  on  his 
coaches,  could  maintam  an  action  against  a 
rival  carrier  who  also  used  the  words 
"  Revere  House,"  but  without  authority. 
Defendant  had  a  right  to  carry  passengers 
to  the  Revere  House,  but  not  to  hold  himself 
out  to  the  public  as  in  the  employment  or 
having  the  patronage  or  confidence  of  the 
Revere  House.  Damages  need  not  be  proved 
to  warrant  a  verdict  for  nominal  damages. 
Jury  not  confined  in  their  verdict  to  loss 
catised  by  actual  diversion  of  traffic,  but  may 
infer  such  injury  as  warranted  by  the  evi- 
dence. 

Ames  vs.  King  (2  Gray,  379,  1854).  A  bill 
in  equity  to  restrain  the  fraudulent  use  of 
trade-marks  cannot  be  maintained  under 
St.  oi  1852,  c.  197,  without  alleging  and 
proving  that  such  use  was  for  the  purpose 
of  falsely  representing  the  articles  so 
marked  to  be  manufactured  by  the  plaintiff. 

Bowman  vs.  Floyd  (3  Allen,  76,  1861).  This 
was  the  case  of  the  continued  use  of  a  firm 
name  after  the  decease  of  one  of  the  partners 
whose  name  appeared  in  the  firm  niune. 
Under  ch.  56  §  4,  General  Statutes,  the 
court  has  power  to  restrain  such  use  of 
the  name  of  the  deceased  partner,  un- 
less he  had  given  his  written  consent  to  such 
use  during  his  lifetime,  or  it  had  been  given 
by  his  executors. 

'Rogers  vs.  Taintor  (97  Mass.,  391,  1867). 
F.  J.  R.  &  T.,  copartners,  began  business  of 
manufacturing  machinery  at  Worcester, 
in  1852,  under  the  firm  name  of  F.  &  Co. ; 
j  and  F.  J.  R.  and  C,  copartners,  began  like 
business  at  Cincinnati  in  1853,  under  the 
same  name,  using  it  as  the  style  of  the  firm 
and  as  a  trade-mark.  F.  died  in  1854.  Ever 
since  his  death  J.  R.  &  0.  continued  the 
business  at  Cincinnati  with  all  the  rights  as 
to  the  use  of  the  name  of  F.  &  Co.  which 
the  Cincinnati  firm  had  originally ;  and  J. 
R.  &  T.,  copartners,  continued  the  business 


4 


mttm 


le 


m 


•t  WoroMt«r,  undor  the  natno  of  F.  &  Cn. , 
with  tho  aaseiit  of  F.'a  ropniHuntativeii  until 
1861,  when  their  firm  was  diMolved  and  it* 
orders,  correspondence  and  g()o<l  will  were 
■old  to  T,  who  thereafter  pursued  the  busi- 
ness of  buying  and  selliuK,  but  nut  of  manu- 
facturing machinery.  Held  that  J.  R.  &  C. 
oould  not  maintain  a  bill  in  equity  to  enjoin 
T  from  using  the  name  F.  Sc  Co.  m  his  buii- 
nesa,  and  attaching  it  to  machinury  which 
he  sells,  made  bv  others  than  themselves. 

Emerson  vs.  Badger  (loi  Uass.,  83,  1869). 
Charles  Ehnerson,  a  maker  of  racor  straps 
which  bore  a  label  stating  that  they  wore 
made  by  "  Charles  Emerson,  Emerson 
Place,"  taught  his  business  to  his  five  neph- 
ews. After  his  death  intestate  one  of  them, 
of  the  same  name  as  the  uncle,  carried  on  the 
business  at  Emerson  Place,  and  used  a  label 

Eoiselv  similar  to  that  formerly  used  by 
uncle.  Held  that  is  was  no  infringe- 
ment of  this  nephew's  rights  for  the  son 
of  another  nephew  to  use  a  label  on  similar 
■traps  which  he  manufactured,  stating  that 
he  was  the  ■on  of  a  successor  of  the 
"  orginal  Charles  Emerson,  Emerson  Place." 

Hallettvs.  Oumston  (no  Mass.,  39,  1873). 
Plaintiff  allowed  his  name  to  be  used  in  the 
firm  name  "Hallett  &  Cumbion,"  without 
any  interest  in  said  firm.  On  the  death  of 
Omnston  his  son  continued  to  use  same  firm 
name  in  partnership  with  another  person  by 
the  name  of  Hallett.  Held,  that  plaintiff 
who  had  had  no  interest  in  the  business  of 
Hallett  &  CumstoUj  had  no  right  to  any 
trade-mark  used  in  it.  He  could  not,  there- 
fore, maintain  suit  to  restrain  the  use  of 'the 
name  Hallett  &  Cumston  as  a  trodj-mark. 

Morse  v».  Hall  (109  Mass.,  409,  1873). 
Under  statutes  forbidding  continued  use  of 
name  of  deceased  partner  the  surviving  part- 
ner cannot  use  the  name  of  the  deceased 
partner  without  consent  of  his  legal  repre- 
sentatives. 

Sohier  vi.  Johnson  (in  Mass.,  338,  1873). 
A  trade-mark  is  a  device  or  symbol  used  to 
designate  the  article  manufactured,  and  the 
right  to  use  it  passes  w  ith  the  business  and 
g^ood  will  as  an  incident,  unless  something 
appears  to  show  a  different  intention  of  the 
parties. 

In  Chase  vs.  Mayo  (isi  Mass.,  343,  1876), 
it  was  decided  that  an  official  inspector  of 
fish,  who  branded  the  packages  of  fish 
packed  by  him  in  his  business  with  his 
official  brand,  does  not  therebv  gain  a  pri- 
vate right  in  the  brand  as  a  trade-mark. 

In  Oilman  vs.  Hunnewell  (i33  Mass.,  139, 
1877),  Oray,  J.,  said :  "  A  trade-mark  may 
consist  of  a  name  or  a  device  or  a  particular 
arrangement  of  words,  lines  or  figures  in  the 
form  of  a  label,  which  has  been  adopted  and 
used  by  a  person  in  his  business  to  designate 
goods  of  a  particular  kind  manufactared  by 
him,  and  wnich  no  other  person  has  an  equal 
right  to  use.  The  right  in  a  trade-mark  so 
applied  is  recognised  as  property  which  a 
court  of  equity  will  protect  by  injunction. 


A  mere  general  description,  by  words  ii 
common  use,  of  a  kind  of  article,  or  of  it 
nature  or  qualities,  cannot  of  itHt>lf  be  the 
subject  of'  a  trade-mark.  A  person  may 
have  a  right  in  his  own  name  a8  a  trade- 
mark, as  against  a  i>or8on  of  a  different 
name  ;  but  he  cannot  have  such  a  ri^ht  as 
against  another  purson  rf  the  same  name, 
unless  the  defendant  uses  a  form  of  stamp 
or  label  so  like  that  used  by  the  plaintiff  as 
to  represent  the  deiendant's  goods  as  of  the 
plaintiff's  manufacture.  •  »  *  The  court 
will  not  restrain  a  defendant  from  the  uho 
of  a  label  on  the  ground  that  it  infringes  the 
plaintiff's  trade  mark,  unlesv  the  form  of 
the  printed  words,  the  words  tliomselvus, 
and  the  figures,  lines  an<l  devices  are  so 
similar  that  any  person,  with  such  reasona- 
ble care  and  observation  as  tho  public  gen- 
erally are  capable  of  using  and  may  be  ex- 
pected to  exercise,  would  mistake  the  one 
for  the  other."  The  principles  of  law  thus 
enunciated  were  applied  to  the  cnse,  which 
is  too  long  to  be  given  in  this  article. 

tt  10.  MicMgan. — Gray  vs.  Koch  (3  Mioh. 
N.P.,  119,  1871).  No  property  can  bo  acquir- 
ed in  words  or  marks  which  do  not  denote 
the  goods  or  property  or  particular  place  of 
business  of  a  person.  Held,  accordingly, 
that  no  person,  by  prior  use,  can  acquire  an 
exclusive  right  to  the  use  of  the  words 
"  Mammoth  Wardrobe,"  as  a  sign  or  desig- 
nation of  a  place  where  a  large  amount  of 
clothing  is  kept. 

g  II.  Missouri. — Filleyis.  Fa8Bett(44  Mo., 
168.  i86g).  Plaintiff's  stoves  wore  marked 
with  oak  leaves  and  the  words  ' '  charter  oak. " 
Defendants  were  held  to  infringe,  though 
thoy  omitted  the  oak  leaves.  The  imitation 
need  not  be  exact,  nor  of  tho  whole  trade- 
mark. Ic  will  be  enjoined  if  likely  to  de- 
ceive. It  is  not  necessary  to'prove  actual 
deception  of  others.  It  is  no  defense  that 
others  have  infringed,  unless  it  be  shown 
that  plaintiff  assented  to  or  acquiesced  in 
such  infringement. 

McCartney  vs.  Garuhart  (45  Mo.,  593, 
1870).  Plaintiff  sold  whiskey  in  barrels,  on 
the  heads  of  which  were  stenciled  two 
anchors,  with  the  upper  parts  leatiing  away 
from  each  other.  Defendant  sold  whiskey 
in  barrels,  on  the  heads  of  which  were  sten- 
ciled- two  picks  with  the  handles  leaning 
toward  each  other.  The  names  of  plaintiff 
and  defendants  were  used  on  their  own  bar- 
rels respectively.  The  only  similarity  was 
between  the  anchors  and  picks.  No  fraud 
was  shown,  nor  that  any  one  had  been  mis- 
lead. Held  that  the  resemblance  between 
the  two  brands  is  too  slight  to  be  likely  to 
mislead. 

State  of  Missouri  vs.  Gibbs  (56  Mo.,  133, 
1874).  "  Lea  &  Perrin's  Worcestershire 
Sauce. "  The  act  to  protect  merchants,  &c. , 
against  counterfeit  trade-marks,  approved 
Feb.  23,  1870,  did  not  abridge  the  common 


il  deocription,  by  words  in 
a  kind  of  article,  or  of  iu 
ieit,  cannot  of  itm-lf  bu  tlie 
rodo-inark.  A  portion  may 
n  bin  own  name  as  a  trade- 
lit  a  purson  of  a  different 
annot  have  such  a  n,;ht  at 

ixiPHon  it  the  laine  name, 
lunt  UROH  a  form  of  stamp 
;hat  used  by  the  plaintiff  aa 

detendant's  Koodg  as  of  the 

facture.    •   »    «    The  court 

a  defendant  from  the  iihu 

I  ground  that  it  infringes  the 

mark,  unlesv  the  form  of 
rds,  tbe  words  themselves, 

,  lines  and   devices  are   so 

person,  with  such  reasona- 
lervation  as  the  public  gen- 
ie of  using  and  may  be  ox- 
ise,  would  mistake   the   one 

Tlie  principles  of  law  thus 
>  applied  to  the  case,  which 

given  iu  this  article. 


17 


W.— Qroy  v».  Koch  (2  Mioh. 
I.  No  property  con  be  accioir- 
inarks  which  do  not  denote 
iperty  or  particular  jjlace  of 
>erBon.  Held,  accordingly, 
by  prior  use,  can  acquire  an 
to  the  use  of  the  words 
rdrobe,"  as  a  sign  or  dosig- 
e  where  a  large  amount  of 


f.— Filley  vs.  Fassett  (44  Mo. , 
intiff's  stoves  were  marked 
ind  the  words  "charter  oak." 
'e  held  to  infringe,  though 
3  oak  leaves.  The  imitation 
>ct,  nor  of  the  whole  trade- 
be  enjoined  if  likely  to  de- 
;  necessary  to*  prove  actual 
ers.  It  is  no  defense  that 
fringed,  unless  it  be  shown 
isented  to  or  acquiesced  in 

Dt. 

r.  Garnhart  (45  Mo.,  593, 
sold  whiskey  in  barrels,  on 
vhich  were  stenciled  two 
le  upper  parts  leatiing  away 
r.  Defendant  sold  whiskey 
B  heads  of  which  were  sten- 
with  the  handles  leaning 
Bf.  The  names  of  plaintiff 
were  used  on  their  own  bar- 
■.  The  only  similarity  was 
•hora  and  picks.  No  fraud 
that  any  one  had  been  mis- 
b  the  resemblance  between 
s  too  slight  to  be  likely  to 

uri  r».  Qibbs  (56  Mo.,  133, 
t  Perrin's  Worcestershire 
t  to  protect  merchants,  &e. , 
:eit  trade-marks,  approred 
i  not  abridge  the  common 


law  property  in  a  trode-mnrk,  and  applivH 
to  citizens  of  other  Htates  and  nr.tioni,  as 
well  tts  those  of  Missouri. 

8t.  I^iuis  Piano  Mfg.  Co.  ex.  M<>rkel  (1  Mo., 
App.  305,  1876).  Plaintiffs  used  the  words 
"bi'll  treble  "  in  circulars  and  other  ndver- 
tisenients  of  its  pianos,  but  did  nut  atlix  the 
words  to  piuiioN.  Defendants  afKxed  the 
words  to  their  pianos,  Injunction  agiiiiiMt 
defendant  in  court  below  was  diNsolved,  be- 
cause "the  failure  of  the  ulaintiif  to  ulHx 
the  term  or  nuine  '  bell  treble '  to  pinnoH  of 
its  manufacture  disables  it  from  cluiniiiiK 
that  defendants  have  injured  it  by  alflxiug 
it  to  theirs."         , 

S  12.  Sew  York. — There  are  about  as 
muny  eases  reported  in  the  New  York  re- 
ports as  in  those  of  all  the  other  States  onm- 
bined — a  fact  probably  due  to  two  chiiser, 
vis.,  the  custom  in  New  York  to  publish  de- 
cisions of  the  lower  courts  and  of  single 
judges,  and  also  because  the  city  of  Now 
York  is  the  greatest  distributing  point  of 
the  United  States.  A  digest  is  made  of  the 
leading  cases  for  convenience  of  examina' 
tion. 

Who  May  Acquire  a  Traile-Murknnil  How. 
— The  venders  of  an  article  of  trade  or  manu- 
facture, who  use  a  particular  trade- mark  to 
distinguish  such  arriolu  are  entitled  to  pro- 
tection,- though  they  ilo  not  manufacture 
the  goods.  Taylor  vs.  Carpenter,  2  Sandf., 
oh.  603,  1846. 

Aliens  have  the  same  right  to  relief 
against  a  piracy  of  their  trade-marks  as 
citizens  of  the  Unite  I  States.  Coates  rm. 
Holbrook,  2  Sandf.,  $86,  1845. 

The  sale  of  the  good  will  of  a  business  does 
not  transfer  a  right  to  the  use  of  the  vendors 
sign,  or  trade  name,  e.g.,  "  Howe's  Bakery." 
Howe  «».  Searing,  \q  How.  Pr.,  14,  i860. 

The  purchased  of  a  spring  (whose  waters 
are  designated  by  a  trade-mark)  and  all  the 
interest  of  the  original  proprietors,  acquire 
a  valid  title  to  the  trade  mark.  C.  &  E. 
Spring  Co.  vs.  H.  R.  C.  Spring  Co.,  4s  N.  Y., 
^9>.  1871. 

Though  one  discover  or  invent  an  article 
and  give  it  a  peculiar  and  distinctive  name, 
if  he  permits  another,  with  his  acquiescence, 
to  appro(>riate  it  with  that  name  and  put 
it  forth  to  the  public  as  his  own,  that  other 
will  become  the  proprietor  of  the  name  if 
ho  me^s  the  other  conditions  prescribed  by 
the  law  in  such  cases.  Caswell  m.  Davis, 
78  N.  Y..  223,  1874. 

It  was  decided  that  one  might  acquire 
the  right  to  use  a  trade-mark,  registered 
under  the  United  States  statute,  by  lieente, 
paying  royalty  for  its  use.  We  do  not  think 
this  good  law.  Hilsen  es.  Libby,  44  N.  Y. 
Superior  Ot.,  K.  12,  1878. 

What  May  Become  a  Trade-Mark. — "Yan- 
kee soap."  Williams  es.  Johnson,  2B0BW.,  i, 
1857  ;  id.  vs.  Spence,  2$  How.,  Pr.  366,  1863. 

"Cocoaine,"  as  applied  to  a  hair  wash. 
Burnett  t».  Phalon,  3  Keys,  N.  Y.  594,  1867. 


"  tiisniarck,"  as  applied  to  paper  ccillurs. 
Mesurole  r«.  Tynberg,  4  Abb.  Pr.,  N.  M.  410, 
1868. 

"  Bovalino"  as  applied  to  a  hair  |)oniade. 
Lockwood  I'd.  Bodtwiek,  a  Daly,  ;3i,  i80(). 

"  CongroHS  Water,"'  or  "  Congn  ss  Spring 
Water,"  appropriately  indicates  the  origin 
and  ownei-Nliip  of  the  water  flowing  from 
Congress  Spring,  and  the  word  "  Congress," 
used  in  connection  with  the  bottling  and 
sale  of  such  water,  is  u  proper  and  legitimate 
biikiness  trnde-niark.  C.  iNc  E.  H.  Co.  v».  H. 
K.  C.  S.  Co.,  45  N.  Y.,  2(}i,  1871. 

"  3"3i"  as  applied  to  steel  pens,  not  to  ex- 
press any  size  or  quality,  but  the  character 
or  pattern.  Gillott  va.  Esterbrook,  48  N.  Y,, 
374,  1873;  id.  "  yi"  on  cigarettes.  Kinney 
i-N.  Raseh,  16  Am.  Xaw  Heg.,  N.  S.  S96, 
1877;  id.  "35"  on  cards  for  photographic 
mounts,  Williams  va.  ReyiioldB,  7  Abb., 
New  Cases  17,  1874. 

"  Akron,"  tbe  name  of  the  place  of  origin 
of  a  cement,  is  a  good  trade-mark  of  such 
cement  as  against  persons  not  living  in 
Akron.  Newman  rs.  Alvcrd,  j'  N.  Y.,  189, 
1873.  "Worcestershire  "  as  applied  to  sauce 
iu  same  manner,  15  At>b.  Pr.  (N.  S.)  1873. 

Whut  Cannot  Hecomf  n  Tijde-Mark. — 
Marks,  symbols  or  letters  which  merely  in- 
dicate the  appropriate  name,  mode  or  pro- 
cess of  manufacture,  or  the  peculiar  ur  rela- 
tive quality  of  the  fabric  manufactured,  as 
distinguished  from  those  marks  which  indi- 
cate the  time,  origin  or  ownership  of  the 
fabric — e.  g.,  the  letters  "A.  C.  A.,"  used 
by  a  manufacturer  of  tickings  to  designate 

'  the  first  quality  of  his  fabrio-are  not  trade- 
marks to  use  which  an  exebisive  right  may 

'  be  claimed.  Amoskeag  Mfg.  Co.  vs.  Spear,  3 
Sandf.,  599,  1849. 

'  Arbitrary  names — e. g.,  "Galen,"  "Lake," 
"Cylinder,"  "  Wayne"  and  "New  York  " 
— when  applied  to  glass  to  denote  quality 
only,  are  not  entitled  to  protection  as  trade- 

i  marlcs.     Sbikes  vs.  Landgraff,  17  Barb  ,  608, 

1S53. 

"  Schnapps,"  used  in  Holland  to  mean  a 
dram,  or  gin,  as  applied  to  gin.  Wolfe  vs. 
Goulard,  18  How  Fr.,  64,  1859. 

"Schiedam,"  because  the  name  of  a 
town.     Same  case. 

"  Club  House,"  as  applied  to  gin  ;  beoaus« 
it  had  been  previously  used  to  indicate  a 
superior  quality  of  articles,  including  gin. 
Corwin  es.  Daly,  7  Bosw.,  222,  i860. 

"  Old  London  Dock  Gin  "  ia  descriptive. 
Binninger  es.  Wattles,  28  How.  Pr.,  206, 
1865. 

"Dessicated  Codfish,"  is  descriptive. 
Town  es.  Stetson,  5  Abb.  Pr.  (N.  S.)  2x8, 
1868. 

A  person  cannot  acquire  a  trade-mark  in 
his  own  name,  and  thus  debar  others  having 
the  same  name  from  using  it  in  their  busi- 
ness.    Meneely  vs.  Meneely,  62  N.  Y.,  427, 

1875.  Devlin  vs.   Devlin,  69  N.  Y.,   212, 
1877.     Decker  vs.  Decker,  52  How.  Pr.,  218, 

1876.  Faber  es.  Faber,  49  Barb.,  357,  1867. 


t8 


( 

1 


Clark  Id.  (Mnik,  35  B/irb.,  76,  1857.  Contra, 
diatum  in  Mo«vu  vn.  Howe  Mnohino  Co.,  50 
Diirb.,  33f),  1H67. 

VV'ordN  anil  phraNeH  in  common  mo  and 
whicli  indicate,  tho  charat't«r,  kind.  (|iiality 
and  '!onipo*ition  of  nn  article  of  lyannfan- 
ture  nnnnot  hoconio  a  trade- niarlc,  nvvn 
thoui:b  the  form  of  tlin  wordx  or  phraiutM 
adopted  alio  indicatn  thn  origin  aixl  mak««r 
of  the  nrtiuht.  Tlin  word*  nnmt  uxpreHH  oidy 
the  lattor  to  l)«come  a  trado-innrk — «.  (/.,  a 
mndicine,  the  principal  inKTedifntM  of  which 
are  iron,  phoRphorni)  and  tdixir  of  caliRaya 
bark  cannot  be  called  (nn  a  tradx-mark) 
"  Kerro-PhoHphorated  Klixir  of  CaliiiaVa 
Bark."  Caswell  m,  Davi«  5»  N.  Y  ,  223, 
1874. 

"  Qohl  Medal,"  ax  appliod  to  HaleratUN 
Tnylor  f».  Gillies,  5()  N.  Y.,  331,  1874. 

When  an  Injunctinn  will  bn  (Irantml.^ 
The  name  of  a  newspaper  may  be  protected 
by  injunction  if  tho  title  in  clear.  Snow- 
den  m.  Noah  Hopkins,  Ch.  Rkp.,  347.  Bell 
vs.  I^rftcke,  8  I'aigo,  Ch.  7<;,  1840.  Matsell 
w.  KlannaKan,  2  Abb.  Pr.,  N.  8.,  459,  1867. 
Where  the  Court  sees  that  the  complainant's 
trade-marks  are  simulated  in  such  a  manner 
as  probably  to  deceive  his  customers  or 
patrons,  the  piracy  will  be  checkeil  at  once 
t>y  injunction.  The  Court  proceeds  upon 
the  f^round  that  the  complainant  has  a  valu- 
able interest  in  the  goo<l  will  of  his  trade  or 
business ;  and  that  havini;  appropriated  to 
himself  a  particular  label,  or  si)(n,  or  trade- 
mark, indicatinf?  that  the  article  is  manu- 
factured or  sold  by  him  or  by  his  authority, 
or  that  he  carrits  on  business  at  a  particular 
place,  he  is  entitled  to  protection  against 
any  other  person  who  attempts  to  pirate 
upon  the  good  will  of  the  complainanttf* 
friends  or  customers  by  using  his  trade- 
mark without  his  authority  or  consent.  An 
injunction  will  be  granted  against  one  who 
affixes  to  his  own  goods  a  copy  or  imitation 
of  the  trade-mark  of  another,  but  onlv  to 
the  extent  to  which  the  trade-mark  is  imi- 
tated. Amoskeag  Mfg.  Co.  v».  Spear,  3 
Sandf.,  599,  1849- 

Against  pirating  the  name  of  a  hotel. 
Howard  vs.  Henriques,  3  Sandf.,  72$,  1851. 

Against  a  colorable  imitation  of  a  trade- 
mark, containing  such  differences  as  the 
public  would  not  be  likely  to  observe.  Clark 
»».  Clark,  25  Barb.,  77,  1857. 

The  use  of  "Brooklyn  White  Lead  and 
Zino  Company  "  enjoined  on  application  of 
"  Brooklyn  White  Lead  Company."  B.  W. 
L.  Co.  vs.  Maaury,  25  Barb.,  416,  1857. 

The  use  of  the  word  "Cocoine"  was  en- 
joined on  complaint  of  the  owner  of  trade- 
nurk  "Cooiaine."  Burnett  vs.  Phalon,  3 
Keys,  N.  Y.,  594,  1867. 

Agiainat  pirating  the  name  of  a  newa- 
paper,  when  the  name  adopted  by  defendant 
is  calculated  to  deceiye.  Mataell  v«.  Flana- 
gan, 3  Abb.  Pr.,  N.  S.  459,  1867  ;  Coster  ««. 
Peters,  4  id.,  53,  1868. 

Against  defendant's  label,  which  closely 


'  resenililed  that  of  plaiiitifT,  exnxpt  tlmt  de- 
fendant had  Hubstituteil  "  Hovinn  "  in  pinco 
'  of  "  Bovalino."     i.,ockwooil  vs.   Uostwick,  3 
Daly,  521.  1H69. 

fo  protect  II  spocies  of  good-will  luia- 
laKous  to  a  trado-niark,  c.  (/,,  '  Number  10," 
tho  nuuibor  of  a  place  of  business  which 
was  printoil  on  atlvurtiNoments,  circiilnrN, 
(ke.,  in  connection  wi'h  a  place  of  busintms. 
Tho  (Men  >V  Hall  Miy,  Co.  rs.Hall,  61  N.  Y,, 
236,  1874. 

To  provoMt  tho  use  of  the  name  of  the  de- 
ffudant  in  such  a  wiiy  as  to  mislead  or  in- 
iliico  tho  publi(!  t'>  bvlievfl  that  ho  is  thi> 
plaintiffs— c.  (/,,  ilofondan^,  who  had  no  part- 
ner, usoil  thu  narao  of  the  cimii)liiinin)(  flrni 
"  Devlin  &  Co."  Dovlin  «s.  Devlin,  69  N. 
Y.,  212,  1877. 

Agiinst  a  manufacturo  of  lahelri  which 
have 'such  a  rosomhianco  to  tho  genuine  as 
to  deceive  purchasers  of  otdinary  caution, 
or  tho  careless  and  unwary.  Coleman  vs. 
Crump.  70  N.  Y.,  573.  1877. 

To  sustuin  such  an  action  it  is  not  neces- 
sary to  oMtablish  a  guilty  knowl(><lKe  or 
friiudulent  intent  on  the  part  of  tho  de- 
fendant. It  is  sufficient  to  show  tho  pro- 
priotory  right  of  tho  plaintiff  and  its  actual 
infringement,     Hanio  case. 

Tho  Court  will  on  join  the  use  of  n  wrap- 
per and  label  thu  general  effect  of  which' is 
to  constitute  a  wrongful  imitation  of  those 
of  plaintiff,  although  tho  defendant  may 
have  replaced  tho  trade-mark  name  by  some 
other,  o,  f/.,  "'Sapolio"  by  "JSaphia."  The 
name  was  not  enjoined.  *  Morgan  vn. 
Schwachofer,  5  Abb.,  N.  C,  265,  1878. 

When  (in  Injunction  will  he  liefused. — 
One  Brindle,  a  watchmaker,  stamped  all 
watches  made  by  him  with  his  name.  One 
Samuel  purchased  froip  Brindle  the  right  to 
stamp  Brindle's  name  on  watches  made  by 
Samuel,  and  Samuel  assign^  his  right  to 
plaintiff.  Defendants  liad  on  hand  watches 
made  by  Brindle,  and  stamped  with  his 
name.  Injunction  refused.  Samuel  vs. 
Buger,  13  How.  Pr.,  343,  1856. 

When  the  name  or  phrase  claimed  aa  a 
trade-mark  is  calculated  to  deceive,  t*.  e., 
"  Bfilm  of  a  Thousand  Flowers,"  which  in- 
stead of  being  an  extract  of  flowers  was  a 
liquid  soap.     Fetridge  vs.  Wells,  4  Abb.  Pr. , 

144.  1857- 

The  points  of  difference  are  so  prominent 
and  striking,  as  at  once  to  produce  the  im- 
pression that  both  the  plaintiffs  and  defend- 
ants medicines  and  books  are  different  pro- 
ductions, and  when  that  ia  the  case,  an  ac- 
tion for  an  injunction  cannot  be  maintained, 
Talcott  vs.  Moore,  1 3  Supreme  Court  Reports, 
N.  Y.,  106,  1875. 

Plaintiff,  a  dealer  in  refined  lard,  stamped 
upon  the  cans  in  which  it  was  put  up  for 
sale  the  figure  of  a  Urge  fat  bog.  The 
defendants  stamped  upon  their  packages  of 
lard  a  ^lobe  with  a  small  gannt  wild  boar 
on  top.  Remainder  of  devices  used  with  al 
leged  trade-mark  were  dissimilar.     Injunc- 


1^ 


^ 


oxni<|it  Mint  do- 

loviiin  "  III  |iliicii 

i<«.   Uoiitwii'k,  3 

(((MKl-will  iiim- 
,  "  Niimbor  lo," 

himiiii-Hi  wliicli 
iieitU,  rirtMilnrN, 
ace  of  himiiu'H. 
..Hall,  6i  N.  Y.. 

name  of  tho  de- 
1  iiiiHieail  or  in- 

that  lio  Ih  till' 
who  had  no  part- 
oniplitiiiin){  flrni 

Devlin,   69  N. 

at  labeM  which 
I  tho  genuine  an 
idinary  caution, 
f.     Uolenian   v», 

it  in  not  neces- 
kiiowledtte    or 

lart  of  the  de- 
ghow   tho   pro- 

f  and  its  actual 

9  use  of  (I  wrap- 
:ect  of  which*  in 
itation  of  thonu 
(lefendant  may 
rk  name  bv  some 
"^aphia."  The 
*  Morgan  r.i. 
,  265,  1878. 
I  be  Kefuwd.— 
er,  stamped  all 
his  name.  One 
ndlo  the  right  to 
sitcheg  made  by 
i*(l  his  right  to 
in  hand  watches 
imped  with  his 
Samuel  vb. 
56. 

se  claimed  as  a 
0  deceiv*,  i.  p., 
irers,"  which  in- 
sf  flowers  was  a 
ells,  4  Abb.  Pr.,  ' 

ire  so  prominent 
produce  the  im- 
biSs  and  defend- 
re  different  pro- 
the  case,  an  ac- 
>t  be  maintained. 
le  Court  Reports, 

ed  lard,  stamped 
was  put  up  for 
fat  hog.  The 
lieir  packages  of 
taunt  wild  boar 
ces  used  with  al 
limilar.     Injunc- 


T 
I. 

I 

.1 


1!» 


' 


lion  ri'fiisod.  I'opham  Va.  Cole,  66  N.  Y., 
6(j,  1876. 

WIml  oiinnot  hf  sff  up  an  n  IWfrnne. — \<> 
dofoiiMx  that  the  Hiiiiiilnted  nrticlo  In  ei|Uiiltii 
the  gi'Muine.  Conts  v».  Ilollirook,  2  Sniidf,, 
(•h.  586,  1845  ;  Taylor  vn.  C'ariieiiter,  id.  61)3, 
1846.     FartriilK'o  i'».  Menck,  id.  633.  1847. 

No  ilofenfie  that  tho  maker  of  I  ho  NpiiriouN 
goods,  or  tho  joober  who  <<t<llH  tluMii  to  (Im 
retailers,  itiforins  tlioHo  who  1  iirchiiHu  that 
the  article  is  Hpiirious  or  an  imitation.  Coats 
V».  liolhrook,  above. 

The  ulionago  of  the  person  whose  trado- 
nmrkH  nre  Nimulatod,  and  his  reHideiicn  in  a 
forei>{ii  country,  ^o  not  nffoct  bin  right  to 
their  exclusive  use  when  he  has  iiitroihiced 
them  here.  Coat*  o».  Holbrook,  3  Sondf., 
I'h.  586,  1845  ;  Taylor  ».<•.  Carpenter,  a 
Haiidf.;  ch.  603,  1846.  That  iilaintifl'  had 
ct'iiMod  to  use  the  mark  infringed  for  3  Jrears. 
r.eiiioine  M.  Ganton,  a  £.  D.  Smith,  343, 
1854. 

Ill  nn  action  to  restrain  the  infringement 
of  plaintiff's  trHde-uiark,  the  complaint  al- 
leged that  thoy  manufactured  brandv  which 
they  put  up  ond  sold  in  "quart  ond  pint 
bottles,"  on  which  thoy  put  the  trade-mark 
in  question.  The  Court  found  that  defend- 
ant pirated  plaintiff's  trade  mark,  but 
falsely  and  deceitfully  used  bottles  repre- 
sented to  be  "quart  and  pint"  which  did 
not  hold  that  quantity,  anu  that  the  trade- 
mark was  designed  and  used  to  protect  a 
fraud,  and  upon  this  ground  disniissod  the 
complaint.  This  ground  was  not  set  up  in 
lihe  answer,  and  does  not  appear  to  have 
been  litigated  on  the  trial.  Nothing  ap- 
peared upon  the  bottles  to  indicate  the  quan- 
tity contained,  nor  did  it  ai^pear  that  such 
bottles  were  used  in  the  triule  as  a  measure 
of  quantity,  or  that  purchasers  did  not 
understand  their  capacity  ;  or  that  plaintiff 
ever  deceived  any  one.  The  findings  of  fact 
and  conclusions  were  held,  on  appeal,  to  be 
erroneous.  Hennessy  vs.  Ward  Wheeler, 
69,  N.  Y.,  271,  1877. 

The  fact  that  the  same  device  is  used 
upon  other  .rticles  of  merchandise  does  not 
take  from  tae  plaintiff  the  exclusive  right  to 
Its  use  upon  the  articles  manufactured  by 
bim.  Coleman  vs.  Crump,  70  N.  Y.,  573, 
1877. 

Statutes. — To  render  a  person  liable  under 
the  pi-ovisiofls  of  §  4,  ch.  306,  Laws  of 
1862,  entitled  "  an  act  to  prevent  and  pun- 
ish the  use  of  false  stamps,  labels,  or  trade- 
marks," as  amended  by  g  3,  ch.  2oq, 
Laws  of  1863,  the  act  complained  of  must 
have  been  done  with  intent  to  defraud  some 
person  or  persons  or  some  body  corporate. 
Low  vs.  Hall.  47  N.  Y.,  104,  1871. 

g  13.  iVoH&Caroh'na.—BlackweUrs. Wright 
(73  N.  C,  310,  1875).  It  was  held  in  this 
case  that  every  manufacturer  has  the  un- 
questionable right  to  distinguish  the  goods 
lie  manufactures  and  sells,  by  a  piAticular 
label,  symbol  or  trade-mark,  and  no  other 


'  person  hnN  a  right  to  adopt  his  triide  iiiiirk  , 
or  one  ho  like  hiN  sn  to  lead  the  |iiil)lic  to 
Hiipixme  the  article  to  which  it  is  atiixed  in 
the  inaiiiifactiire  of  the  inventor.  Hut  be- 
fore the  owner  of  the  trademark  can  invoke 
the  power  of  the  coiirtx  to  prevent  an  in- 
fi'iiigeinent  thereof,  hii  must  show  a  clear 
legal  title  to  the  trude-inurk  and  a  plain  vio- 
lation of  it.  If  it  appear  that  the  trade- 
mark ullewed  to  l»t  an  imitation,  though  in 
some  reitpects  resenibliiig  that  of  the  iilain- 
tilT,  would  not  probably  ditreive  tho  ordinary 
mass  of  purchasers,  an  iiijiinctioii  will  not  bo 
grunted.  The  name  of  the  town  where  both 
parties  are  doing  business  cannot  be  used  as 
a  trade-mark. 

In  this  cane  plaintiff's  label  was  as  follows  1 
"Genuine  Durham  .Smoking Tobacco,  manu- 
factured by  W.  T.  B'ackwell  tHiiccensor  to 
J.  U.  Green  &  Co.),  Durham,  N.  C,"  with 
the  picture  of  a  bull  in  tho  center  of  the 
label,  over  which  au  tho  words  "Trade 
Mark."  He  alleged  that  this  was  imitated 
by  the  label  of  defendant,  which  was  on 
glazed  paper  of  tho  same  color  and  general 
appearance  of  plaintitf's,  with  the  picture  of 
the  head  of  a  bull  in  the  center,  and  read  : 
"The  Original  Durham  Hnioking  Tobacco, 
manufactured  by  W.  A.  Wright."  Injunc- 
tion in  the  court  below  dissolved. 

§  14.  OAio.^McOowan,  &c.  vs.  McQowan, 
(1  Cincinnati  Superior  C,  Rep.  313,  1873).  T. 
&  J.  McG.,  pump  manufacturers,  were  part- 
ners as  McGowau  Bras,  J.  sold  out  to  T. 
all  his  interest  in  the  firm,  including  the  old 
patterns,  with  the  name  of  McGowan  Bros, 
on  them.  T.  and  others  procured  a  certifi- 
cate of  incorporation  as  ' '  McOowan  Bros. 
Pump  and  Machine  Co."  Held  that  J.,  who 
had  set  up  a  similar  business,  could  enjoin 
the  use  by  the  corporation  of  the  name 
"  McGowan  Bros."  The  old  name  is  not  a 
trade-mark,  and  while  there  is  a  right  to 
use  the  old  patterns  with  the  name  of 
McGowan  Bros,  on  them,  it  cannot  hold  out 
by  the  corporation  term  that  all  the  articles 
made  by  it  were  in  fact  produced  by  the 
skill  and  labor  of  J. ,  or  that  the  corporation 
is  in  fact  the  old  flrra  composed  of  both 
brothers. 

§15.  Penniylvania.—Tiie  decisions  in  this 
State  are  more  numerous  than  in  any  other 
State  except  New  York.  They  are,  there- 
fore, given  under  the  form  of  a  digest  for 
convenience  and  perspicuity. 

What  vfiay  become  a  trade-mark.— A.  word 
which  is  the  name  of  an  article  or  indicates 
its  quality  cannot  be  appropriated  as  a  trade- 
mark, e.  (/.,  "Extract  of  Night  Blooming 
CereauB. '  Phelan  vs.  Wright  (s  Phil.,  464, 
1864). 

A  trade-mark  may  consist  of  distinctive 
words,  not  in  common  use,  descriptive  of 
similar  articles.  The  name  of  the  inventor 
may  form  part  of  the  trade-mark.  a.  gr., 
"Dr.    J.     N.    Lindsey's   Improved    Blood 


■MB 


'■'''Vi JiP^',  '^'•-■' 


f 


20 


Searcher."  Fulton  vs.  Sellers  (4  Brewster, 
42,  1867)  ;  Aver  va.  Hall  (3  Brewster,  509, 
1871). 

No  right  can  be  absolute  in  a  name,  as  a 
name  merely.  It  is  only  when  that  name 
is  printed  or  stamped  upon  a  particular  labol 
or  jar,  and  thus  becomes  identified  with  a 
particular  style  and  quality  of  goods,  that  it 
becomes  a  trade-mark,  l^wley  m.  Hough- 
ton (2  Brewster,  303,  1868) ;  Ferguson  vs. 
Davol  Mills  (id.  314,  1868). 

It  is  requisite  that  the  device  should  pe.'* 
form  the  office  of  a  finger-board,  and  indi- 
date  the  name  and  addresp  of  the  manufac- 
turer, to  invest  it  with  the  attributes  of  a 
trade-mark  entitled  to  protection.  The  let- 
ter K  inclosed  in  a  double  ring  with  the  let- 
ters "No."  and  "yds"  between  the  rings, 
UDt  a  trade-mark.  Ferguson  vs.  Davol 
Mills  (2  Brewster,  314,  1868). 

A  trade-mark  to  be  capable  of  exclusive 
use  must  be  such  as  will  identify  the  article 
to  which  it  is  affixed  as  that  of  the  owner 
and  distinguish  it  from  those  of  others. 
Palmer  vs.  Harris  (60  Penn.  S.  R.,  156, 
869). 

Title  to  the  property  in  the  name  "Key- 
stone Lime,"  acquired  by  many  years  cer- 
tain, exclusive  appropriation  and  use  of  it 
by  shippers  of  merchandise  who  did  not  own 
the  vessels  employed  by  them  will  be  pro- 
tected in  equity.  Winson  vs.  Clyde  (9  Phil., 
51?,  1872). 

When  an  injunction  uHU  be  granted. — To 
entitle  the  owner  of  a  trade-mark  to  pre- 
ven'ii  its  use  by  another  person,  there  must 
brj  in  the  copy  such  a  general  resemblance 
of  the  form,  words  and  symbols  in  the  orig- 
inal as  to  mislead  the  public.  Rowley  vs. 
Koughton  (2  Brewster,  303,  1868);  Dixon 
CrucibleCo.  vs.  Gugenheim,  (id.  321, 1869).  A 
sufficiently  distinctive  individuality  must  be 
presented,  so  as  to  procure  for  the  person  him- 
self the  benefit  of  that  deception  which  gen- 
eral resemblance  is  calculated  to  produce. 
Rowley  vs.  Houghton,  supra. 

The  jurisdiction  of  a  Court  of  Chancery 
in  trade-mark  cases  attachei|  because  of  the 
injury  to  the  one  whose  goods  are  simulated 
by  interfering  with  his  profits,  not  because 
of  the  deception  upon  the  public.  Dixon 
Crucible  Co.  vs.  Qug^nheim  (2  Brewster,  321, 
1S69). 

Defendant  put  up  a  sign — "Dr.  F.  R. 
Thomas,  formerly  operator  at  the  Colton 
Dental  Rooms."  The  words  "formerly 
operator  "  were  very  small — the  others  very 
larg^.  Jleld,  that  the  use  of  the  hlga  was 
fraudulent,  as  against  ov.  ner  of  the  Colton 
Dental  Rooms.  Enjoined.  Colton  vs.  Thomas 
^  BrewBt«r,  308,  1868). 

Defendant  will  be  enjoined  against  the  use 
of  his  own  name  when  the  same  has  been 
employed  by  hi  1  as  a  trade-mark  and  sold 
to  another,  with  covenant  not  to  use  the 
trade-mark.  Ayer  vs.  Hall  (3  Brewster, 
50q,  1871). 

When  an  Injunction  will  be  Refused. — The 


label  of  the  plaintiff  was  printed  upon  pink- 
ish paper — "  Aremingo  Mills;  warranted 
indigo  blue."  The  label  of  defendant  was 
printed  on  paper  with  a  fanciful  deep  pink 
border — "Superior  domestic  pure  hnen 
goods,  manufactured  by  William  Baird,  at 
Aremingo  Mills,  Frankford,  Pa.  ;  warranted 
fast  colors."  The  words  "  Aremi'igo  Mills  " 
were  printed  in  small  capitals.  The  size  of 
the  labels  was  different ;  the  color  different ; 
the  size  of  the  letters,  &c. ,  except  the  words 
' '  Aremingo  Mills, "  were  distinct.  Injunction 
refused.  Calladay  vs.  Baird  (4  Phil.,  139, 
i860). 

A  trade-marh  in  the  Spanish  language,  on 
cigars  made  in  New  York,  indicated  that  they 
were  made  in  Havana.  Injunction  refused, 
because  the  mark  gave  a  false  indication. 
Gillis  vs.  Hall  (2  Brewster,  324,  1870). 

The  plaintiff  had  ado))ted  a  trade-mark  so 
recently  as  not  to  have  become  known  to  the 
trade.  Defendant,  in  entire  ignorance  of 
the  fact  and  without  any  apparent  design  or 
intention,  used  the  same  words  as  a  part  of 
his  trade-mark.  Injunction  refused.  Seltzer 
vs.  Powell  (8  Phil.,  296,  1871). 

Plaintiffs  claimed  the  use  of  the  name 
"  Galaxy  Publishing  Company"  as  a  trade- 
mark. There  was  no  L'uch  corpora- 
tion. Held  that  if  plaintiff's  firm  name 
falsely  implies  that  they  are  a  corporation  a 
court  of  equity  will  not  assist  them.  Mc- 
Nair  vs.  Cleare  (31  Legal  In.,  212,  1874). 

The  name  of  an  incorporated  borough 
cannot  be  held  as  a  trade-mark  to  the  ex- 
clusion of  other  residents  ot  the  borough. 
This  is  so,  though  the  trade-mark  was 
adopted  before  the  incorporation  of  the 
borough  and  be'fore  thera  was  any  town 
in  that  place.  A  corporation  adopted 
the  trade-mark  "Glendon"  on  their  iron. 
The  place  where  their  furnaces  were  was 
afterward  made  a  borough  by  the  name  of 
Glendon.  Another  company  afterwanl 
used  the  mark  "Glendon "on  their  iron. 
Held  that  the  second  company  could  lawfully 
use  this  mark.  Glendon  Iron  Co.  vs.  CJhler 
(75  Penn.  S.  R.,  467,  1874). 

Title. — The  purchaser  of  a  trade-mark 
and  the  right  of  manufacture  of  the  article 
designated  by  it  may  be  protected  by  injunc- 
tion. He  need  not  designate  himself  as  as- 
signee. Fulton  vs.  Sellers  (4  Brewster,  42, 
1867) ;  Dixon  Crucible  Co.  vs.  Gugenheim  (2 
Brewster,  321,  1869).  A  person  may  sell  a 
trade-mark  which  contains  his  own  name, 
and  covenant  not  to  use  the  same.  Ayer 
vs.  Hall  (3  Brewster,  509,  1871). 

The  use  of  the  name  "  Keystone  line  "  by 
a  steamship  company  while  the  shippers 
were  its  agents  is  a  mere  license,  and  gives 
no  right  to  its  use  after  the  agency  is  ter- 
minated. Wilson  vs.  Clyde  (9  Phil.,  513, 187a). 

§  16.  Rhode  /stand.— Davis  vs.  Kendall  (2 
R.  I.,  566,  1850).  Plaintiff  was  the  inventor 
of  ametficine  which  he  called  "Pain  Killer." 
Defendant  put  up  a  medicine   in    similar 


m 


H 


21 


inted  upon  pink- 
ills ;  warranted 
[  defendant  was 
nciful  deep  pink 
tic  pure  linen 
'^illiam  Baird,  at 
Pa.  ;  warranted 
Aremi. go  Mills" 
als.  The  size  of 
9  fiolor  different ; 
except  the  words 
:inct.  Injunctiou 
rd  (4  Phil.,  I3Q, 

lish  language,  on 
dicated  that  they 
junction  refused, 
false  indication. 
324,  1870). 
a  trade-mark  so 
me  known  to  the 
ire  ignorance  of 
parent  design  or 
ords  as  a  part  of 
refused.  Seltzer 

se  of  the  name 

my  "  as  a  trade- 

L-uch     corpora- 

iS's    firm    name 

i  a  corporation  a 

ssist  them.     Mc- 

i.,  212,  1874). 

wrated    borough 

nark  to  the  ex- 

ol  the  borough. 

rade-mark    was 

)oration    of    the 

was  any  town 

•ration    adopted 

'  on  their  iron. 

aaces  were   was 

>y  the  name  of 

any    afterward 

on  their  iron. 

ly  could  lawfully 

>n  Co.  vs.  [Jhler 

a  trade-mark 
of  the  article 
»cted  by  injunc- 
himself  as  as- 
Brewster,  42, 
Ougenheim  (2 
rson  may  sell  a 
his  own  name, 
le  same.     Ayer 

70. 

ystone  line  "  by 

the    shippers 

ease,  and  gives 

agency  is  ter- 

Phil.,  513,  i87!«)- 

vs.  Kendall  (2 
iras  the  inventor 
Pain  Killer." 
line    in    similar 


4 


i 


'J) 


packages,  calling  it  "J.  A.  Perry's  Vegeta-  ' 
bio  Pain  Killer."  The  court  said  :  "Trade- 
marks may  be,  first,  the  name  of  the  maker  ; 
second,  symbolical ;  third,  the  name  of  a 
compound.  Of  this  last  kind  is  the  trade- 
mark of  the  plaintiff—"  Pain  Killer."  All 
are  entitled  to  make  and  vend  this  com- 
pound, and  to  vend  it  as  a  similar  article  to 
that  made  and  sold  by  the  plaintiff  ;  but  no 
one  but  the  plaintiff  has  a  right  to  sell  it  as 
a  medicine  manufactured  by  the  plaintiff. 
*  *  If  the  defendant  states  in  his  label 
that  the  article  which  he  Hells  was  made  by 
himself,  although  he  calls  it  by  the  same 
name  as  the  plaintiff's,  he  will  not  be  liable, 
because  he  has  a  right  to  Jiake  and  vend  the 
compound,  if  he  vends  it  as  his  own  and 
net  as  made  by  the  plaintiff.  If  the  defend- 
ant, without  fraud,  use  the  trade-mark  of 
the  plaintiff,  he  is  stiU  liable.  The  whole 
question  in  this  case  is  whether  the  defend- 
ant's label  is  liable  to  deceive  the  public, 
and  to  lead  them  to  suppose  they  are  pur- 
chasing an  article  manufactured  by  the 
plaintiff  instead  of  the  defendant."  Judg- 
ment for  the  plaintiff. 

Barrows  vs.  Knight  (6  R.  I.,  434,  i860). 
In  this  case  it  was  decided  that  "  Boger 
Williams'  Long  Cloth  "  was  a  good  trade- 
mark. 

A.  Carmichel  &  Co.  vs.  Latimer,  Still- 
man  &  Co.  (11  R.  L,  3^5,  1876).  A.  C.  & 
Co.  bein£^  the  successois,  hy  purchase,  of 
Stillman  &  Co.,  woolen  laanufacturers,  con- 
tinued to  use  "  Stillman  &  Co."  as  a  trade- 
mark. Latimer,  Stillmitn  &Co.,  the  lessees 
of  a  mill  formerly  used  by  Stillman  &  Co., 
known  both  as  "  Stilhaan  MiU  "  and  "  Sev- 
enth Day  Mill,"  used  "  Stillman  Mills"  as 
a  trade-mark.  On  a  petition  for  an  injimc- 
tion  against  defendants  to  present  their 
using  the  word  "Stillman" — it  appearing 
that  no  deception  could  be  charged  on  the 
defendants,  and  that  no  person  of  the  old 
firm  of  Stillman  &  Co.  was  a  member  of  A. 
C.  &  Co. — an  injunction  was  refused  be- 
cause a  manufacturer  has  a  right  to  label 
his  goods  with  his  own  name  or  that  of  his 
mill,  if  no  fraudulent  purpose  is  intended. 
The  question  was  raised  (but  not  riecided) 
whether  a  trade-mark  whose  reputation  de- 
pends upon  the  excellence  of  the  manufac- 
ture or  the  skill  and  uonesty  of  the  manu- 
facturer, can  be  assigned. 

§  17.  Wisconsin. — Dunbar  vs.  Glenn  (42 
Wis.,  118,  1877).  The  owner  of  a  natural 
product  (as  the  water  of  a  mineral  spring)  is 
entitled,  like  the  manufacturers  of  artificial 
products,  to  have  his  trade-mark  protected. 
When  a  particular  word  or  combination  of 
words,  used  as  a  trade-mark,  distinctly  point 
to  the  origin  and  ownership  of  the  article  to 
which  it  is  applied  (and  which  is  not  a 
generic  word  or  geographical  name  of  place 
of  origin),  it  will  be  protected.  The  word 
"  Bethesda  "  is  a  good  trade-mark  of  nhtural 
mineral  waters. 


§  18.  United  Slates. — Federal  Courts. — 
What  may  become  a  Trade-mark. — The  cor- 
porate name  of  a  corporation  is  a  trade- 
mark and  will  be  protected  by  a  court  of 
equity.  Newby  vs.  The  Oregon  Central 
Railroad  Co.,  i  Deady,  610  ;  Oregon,  1869. 

"  Eureka,"  first  used  by  complainant  in  a 
compound  fertilizer  which  they  call  "  Eu- 
reka Ammoniated  Bone  Superphosphate  of 
Lime,"  is  a  trade-mark.  Fertilizer  Com- 
pany vs.  Woodside,  I  Hughes,  115  ;  Mary- 
land, i86q. 

"  Our  Young  Folks,"  as  the  title  of  a  pub- 
lication. Osgood  vs.  Allen,  i  Holmes,  185  ; 
Maine,  1872. 

"  The  Star  Shirt,"  or  "  The  •  Shirt,"  as 
applied  to  shirts.  Morrison  vs.  Case,  9 
Blatch.,  548  ;  Conn.,  1872. 

A  representation  of  a  crown  as  applied  to 
paints.  Smith  vs.  Reynolds,  10  Blatch. ,  100 ; 
New  York.  S.  Dist.,  1872. 

But  only  as  to  the  particular  class  of  paints 
on  which  it  had  been  used,  and  not  as  to 
paints  generally.  Same  case  on  final  hear- 
ing, 13  Blatch.,  458,  1876.  La  Soci6t6,  &c. 
vs.  Baxter,  14  Blatch.,  261  ;  New  York,  S. 
D.,  1877. 

"  Dr.  J.  Black  man's  Genuine  Healing  Bal- 
sam," as  applied  to  a  medicine.  Filkins  va. 
Blackman,  13  Blatch.,  440  ;  Conn.,  1876. 

}4  printed  in  large  bold  red  charar:ters  in 
a  certain  form  and  style  on  packages  of 
cigarettes.  (No  exclusive  right  to  the  use  of 
the  numeral  character  yi  used  in  the  ordi- 
nary manner).  Kinney  vs.  Allen,  i  Hughes, 
106;  Virginia,  E.  D.,  1877. 

What  cannot  become  a  Trade-mark. — 
"Lackawanna,"  as  applied  to  coal  mined  \a 
the  Lackawanna  Valley.  Canal  Co.  vs. 
Clark,  13  Wall,  311  ;  U.  S.  Supreme  Court, 
1871. 

To  entitle  a  name  to  equitable  protection 
as  a  trade-mark  the  right  to  its  use  must  be 
exclusive,  and  not  one  which  others  may 
employ  with  as  much  truth  as  those  who  use 
it.     Same  case. 

A  barrel  of  peculiar  form,  dimensions  and 
capacity,  irrespective  of  any  marks  or 
brands  impressed  upon  or  connected  with  it, 
cannot  become  a  lawful  trade-mark,  or  a 
substantial  part  of  a  lawful  trade-mark. 
Moorman  vs.  Hoge,  2  Sawyer,  78  ;  California, 
1 87 1.  Citerl  and  approved  in  Harring- 
ton vs.  Libbey,  'n  which  case  a  tin  pail  of 
peculiar  design  for  holding  paper  collars  for 
sale  was  held  not  to  be  a  trade-mark.  14 
Blatch.,  128  ;  New  York,  S.  Dist.,  1877. 

A  mark  calculated  to  convey  the  im- 
pression that  the  article  to  which  it  is 
affixed  is  patented,  when  there  is  no  valid 
patent  upon  it,  is  deceptive  in  its  name,  and 
therefore  invalid.  Trade-mark  claimed 
"  Mason's  Patent,  November  25,  1858."  The 
patent  had  been  held  invalid.  The  Consoli- 
dated Fruit  Jar  Co.  vs.  Dorflinger,  2  Central 
L.  J.,  721 ;  Penn.,  E.  Dist.,  1875. 

When  an  Injunction  will  be  Granted. — The 
plaintiff  called  his  medicine  the  "  Chinese 


iM^^ 


m 


22 


!    1 


I 


l   . 


Liniment,"  the  defendant  called  his  "  Ohio 
Liniment,"  but  from  the  body  of  the  label, 
and  the  directions  for  the  use  of  the  n-  3di- 
cine,  it  was  clear  that  the  language  of  the 
defendant  was  so  assimilated  to  that  of  the 
plaintiff  as  to  appear  to  be  the  same  medi- 
cine, the  alterations  being  only  colorablo. 
Injunction  granted.  CoHin  va.  firunton, 
4  McLean,  516;  Indiana,  1849.  See  same 
case  on  appeal. 

When  on  ordinary  observation  tho  two 
marks  would  be  confounded  and  defendant's 
mark  is  calculated  to  mislead  the  publ'c. 
Walton  vs.  Crowley,  3  Blatch.,  440:  l>ew 
York,  S.  D.,  1856. 

"Bills  of  t-'his  description  are  not  main- 
tainable UDon  the  ground  that  the  plaintiff 
has  a  right  of  property  in  the  trade-mark. 
The  relief  is  given  because  the  mark  is  a 
sign  or  repreHentation,  importing,  and  so 
understood  and  acted  upon  by  the  public, 
that  the  article  to  which  it  is  attached  is  the 
manufacture  or  production  which  is  gener- 
ally known  in  the  market  under  that  de- 
nomination ;"  id.  But  a  later  case  says : 
"  The  law  is  well  settled  that  a  party  who 
has  appropriated  a  particular  trade- mark  to 
distinguish  his  goods  from  other  similar 
g^ds,  has  a  right  nr  property  in  it  which 
entitles  him  to  its  exclusive  use." 

An  imitation  of  a  label  in  every  respect  like 
the  original,  except  that  "  Hostetter  "  was 
altered  to  "Holsteter,"  and  the  words 
"Hostetter  &  Smith"  to  "Holsteter  & 
Smyth"  was  enjoined.  Hostetter  vs.  Vo- 
winkle,  I  DiUon,  329  ;  Nebraska,  1871. 

Plaintiff  claimed  as  a  trade-mark  the 
words  "Genuine  Durham  Smoking  To- 
bacco," and  the  side  view  of  a  Durham 
bull,  and  alleged  that  defendant  infringed 
by  using  the  words  "  The  Durham  Smoking 
Tobacco,"  and  the  device  of  a  bull's  head, 
with  the  note  ol  ihe  sale  to  the  defendant  of 
Wright's  patent  for  the  manufacture  of 
"  Genuine  Durham  Smoking  Tobacco." 
Both  labels  were  printed  on  paper  of  the 
'  same  color.  Injunction  granted.  Black- 
well  vs.  Armistead,  5  Am.  Law  T.,  85  ;  Vir- 
ginia, W.  D.,  1872. 

An  injunction  will  be  granted  when  the 
imitation  is  so  close  that  by  the  form,  marks, 
contents,  words  or  their  special  arrangement, 
or  by  the  general  appearance  of  the  infring- 
ing device,  purchasers  exercising  ordinary 
caution  a"  likely  to  be  misled  into  buying 
the  article  bearing  it  for  the  genuine  one. 
McLean  vs.  Fleming,  6  Otto,  245  ;  U.  S. 
Supreme  Court,  1877. 

Plaintiff's  bottles  were  branded  with  the 
word  "Apolinaris  "and  the  repreiientation of 
an  anchor.  Defendants  were  enjoined  against 
the  use  of  the  word  "Apclliniu"  and  the  repre- 
sentation of  a  bow  and  arrow  or  anchor, 
plaintiff  giving  bond  to  pay  damages.  Ac- 
tion, &c.  vs.  Somborn,  14 Blatch.,  380  ;  New 
York,  S.  D.,  1878. 

When  an  Injunction  will  be  Refused. — A 
court  of.  equity  will  not,  in  a  contest  be- 


tween persons  who  profess  to  be  manufac- 
turers of  quack  medicines,  interfere  to  pro- 
tect the  use  of  trade-marks  by  injunction. 
A  complainant  whose  business  is  imposition 
cannot  invoke  the  aid  of  equity  against  a 
piracy  of  a  trade-murk.  Fowle  vs.  Spear, 
I  Law  Reps.  (N.  S.).  130  ;  Penn.,  E.  D.,  18^/. 
Hoath  vs.  Wright,  3  Wallace,  Jr.,  ^41  Pern., 

1855. 

On  final  hearing  injunction  was  refused 
and  also  an  application  for  a  rehearing,  be- 
cause there  was  a  controversy  whether  both 
plaintiff  and  defendant  were  not  engaged  iu 
establishing  the  business.  If  the  rights  of 
the  plaintiff  are  not  clear,  the  court  will  re- 
fuse an  injunction  and  leave  him  to  his 
action  at  law.  CofiSn  vs.  Brunton,  5  Mo> 
Lean,  ;:j6  ;  Ind.,  1851. 

A  statement  filed  by  O.,  in  United  States 
Patent  Office,  set  forth  that  his  trade-mark 
consisted  of  the  words  "Heliotype,"  "in 
connection  with  the  production  and  publica 
tion  of  prints,"  and  that  "  the  particular  ar- 
ticle of  trade "  upon  which  he  had  used  it 
was  "  the  prints  which  he  designated  as 
'  Heliotype.' "  Subh  prints  were  made  by  a 
process  to  which  the  name  ' '  Heliotype  "  was 
applied,  and  which  was  a  process  secured 
by  letters  patent  of  the  United  States,  un- 
der which  O.  was  the  sole  licensee.  The 
defendant  used  the  word  "Heliotype"  on 
prints  published  by  him,  but  not  made  by 
such  patented  process.  Held  that  the  right 
of  O.  to  the  recorded  trade-mark  was  lim- 
ited to  its  use  on  prints  made  by  such  pat- 
ented process.  Osgood  vs.  Rockwood,  11 
Blatch.,  310;  New  York,  S.  D.,  1873. 

When  the  registered  trade-mark  consists 
of  a  combination  of  designs,  each  of  which 
alone  is  public  property,  one  who  used  only 
part  will  not  be  enjoinca ;  e.  g.,  plaintiffs 
claimed  as  a  mark  a  perspective  of  a  bed 
bottom,  with  the  letters  "T.  M.  Co."  in 
monogram  in  the  center  of  the  picture,  and 
over  it  the  words  "Tucker  Spring  Bed." 
Defendant  used  the  picture  and  the  words 
"  Tucker  Spring  Bed  "  and  the  same  colored 
label.  Held  he  had  a  right  so  to  do.  The 
Tucker  Mfg.  Co.  vs.  Boyington,  9  O.  G., 
455  ;  Illinois,  N.  D.,  1875. 

Defendant  put  up  Hamburg  tea  in  packages 
of  the  same  size  and  general  shape  and 
similarly-colored  envelope  as  the  plaintiff. 
Similar  printed  notices  and  directions  for 
use  were  tied  up  with  the  package  ;  but  on 
the  labels,  which  nrere  similar  in  place  on 
the  package  and  in  color,  the  name  of  the 
defendant  was  printed  instead  of  that  of  the 
plaintiff.  Injunction  refused,  because  the 
ownership  of  the  packages  was  sufficiently 
indicated.  Frese  vs.  Bachof,  13  Blatch.,  234  ; 
New  York,  S.  D.,  1876. 

When  a  person  who  claimed  property  in  n 
trade-mark  had  acquired  it,  if  at  all,  by  uae 
in  circulars  of  fraudulent  and  deceptive  and 
untrue  language  as  to  the  origin  and  quali- 
ties of  the  article  in  respect  of  which  the 
trade-mark  was   claimed.    Injunction    re- 


rift 


_#• 


ittteiiiH 


fm 


23 


to  be  manufac- 
interfere  to  fto- 
ks  by  injunction, 
ess  is  imposition 
equity  against  a 
Fowle  vs.  Spear, 
■enn.,E.D.,i8^/. 
e,  Jr.,  i4lPern., 

iioa  was  refused 
a  rehearing,  be- 
irsy  whether  both 
re  not  engaged  in 
If  the  rights  of 
the  court  will  re- 
leave  him  to  his 
.  Brunton,  5  Mo- 

in  United  States 
it  his  trade-mark 
"Heliotype,"  "in 
iction  and  publica 
'  the  particular  ar- 
•h  he  had  used  it 

he  designated  as 
ts  were  made  by  a 
J  "  Heliotype  "  was 
a  process  secured 
United  Stat«8,  un- 
lole  licensee.  The 
1  "Heliotype"  on 
t,  but  not  made  by 
Held  that  the  right 
ide-mark  was  lim- 
nade  by  such  i»t- 

va.  Rockwood,    11 

S.  D.,  1873-       .  ^ 
rade-mark  consists 
Igns,  each  of  which 
[one  who  used  only 
ua  ;   e.  (/.,  plaintiffs   '• 
irspective  of  a  bed 
"  T.  M.  Co."  in 
jf  the  picture,  and 
jker  Spring  Bed." 
bure  and  the  words 
id  the  same  colored 
ight  so  to  do.    The 
lyington,  9  O.  G., 

[burg  tea  in  packages 
]  general  shape  and 

)e  as  the  plaintiff. 

and  directions  for 
le  packi^e  ;  but  on 
Isimilar  in  place  on 
|r,  the  name  of  the 
kstead  of  that  of  the 
[fused,  because  the 

ges  was  sufficiently 

iof,i3Blatoh.,234; 

aimed  property  in  a 
1  it,  if  at  all,  by  use 
It  and  deceptive  and 
le  origin  and  quali- 

pspect  of  which  the 
Injunction    re- 


fused.    Seabury  rs.  Qrosvenor,  14  Blatch., 
2(J2  ;  New  York,  S.  D.,  1877. 

The  right  of  A.  to  a  trade-mark  in  con- 
nection with  the  dry  white  oxide  of  zinc  is 
not  infringed  by  the  sale  of  a  paint  com- 
posed of  a  white  oxide  of  zinc  ground  in  oil, 
and  untruly  represented  as  containing  white 
oxide  of  zinc  made  by  A. ,  such  trade-mark 
never  having  been  applied  by  A.  to  that  ar- 
ticle ground  in  oil.  La  Soci^t6,  &c.,  0% 
Baxter,  14  Blatch.,  261 ;  New  York,  S.  D., 

1877. 

The  word  "  Worcestershire,"  as  applied 
to  sauce,  has  become  generic  in  meaning  by 
constant  use  for  a  particular  species  of 
sauce  without  suit  to  prevent  it,  and  the  fact 
that  persons  reside  in  Worcestershire,  in 
..England,  and  manufacture  there  a  sauce 
'  which  they  call  "Worcestershire  Sauce," 
does  not  give  them  the  sole  right  to  such 
application  of  the  term.  A  suit  having  been 
brought — the  same  plaintiffs  against  the 
principal  in  England — and  the  case  dis- 
missed, the  same  plaintiffs  cannot  sustain  a 
sr '.t  here  against  the  agents.  A  trade-mark 
bad  in  England  cannot  become  the  ground 
for  an  injunction  here  against  articles  of 
English  manufactui%.  Lea  V8.  Deakon,  18 
Am.  Law  Beg.,  322  ;  Illinois,  N.  D.,  1879. 

What  Cawiot  be  set  upas  a  Defence. — That 
plaintiff-  is  an  alien.  Taylor  vs.  Carpenter,  3 
Story,  459;  Mass.,  1844. 

Usage  abroad  to  use  trade-marks  of  others 
when  aliens  with  impunity  is  not  a  compe- 
tent defense  to  the  jury,  and  such  a  usage 
being  a  bad  one,  and  not  in  existence  here, 
cannot  offset  the  law  here.  Taylor  vs.  Car- 
penter, 2  Wood  &  M.  i;  Mass.,  1846. 

No  defense  that  plaintiffs  placed  on  their 
business  envelopes  and  business  cards,  "es- 
tablished in  i860,"  when  the  fact  was  that 
the  business  was  established  in  1865,  the 
mistake  having  been  corrected  as  soon  as 
discovered.  'Blackwell  &  Armistead,  5  Am. 
Law  T.,  85  ;  Va.,  W.  D.,  1872. 

Title. — fi  use  by  defendant  was  for  such  a 
length  of  time  and  under  such  circuiustances 
as  to  indicate  an  abandonment  of  the  marks  to 
the  public,  or  a  license  to  use  t^>'m,  the 
plaintiff  could  not  recover.  Taylor  vs.  Car- 
penter, 2  Wood.  &  M.,  I ;  Mass.,  1846.  Ijea 
t».  Deaken,  18  Am.  Law  Reg.,  322;  Illinois, 
N.  D.,  1879. 

Trade-marks  pass  by  assignn-  ent,  with  the 
good-will  of  th'd  business.  Wa  ton  vs.  Crow- 
ley, 3  BlatcL;  440,  New  York,  S.  D.,  1856. 

The  person  for  whom  g^ds  are  manufac- 
tured !<>  nnually  entitled  to  his  trade-mark 
as  the  manufacturer,  id. 

A  partnership  was  formed  by  the  retire- 
>ment  of  a  partner  from  a  previous  firm  who 
sold  to  the  firm  his  interes*:  and  recipe.     It 


was  held  that  as  the  now  partnership  showed 
exclusive  use  of  trade-mark  sincu  1858  iliey 
were  not  obliged  to  show,  as  against  wrong- 
doers, that  thoy  have  a  written  assignment 
from  one  of  tlieir  former  partners.  Hos- 
tetter  t».  Vowinkle,  I  Dillon,  329  ;  Nebraska, 
1871. 

The  name  of  a  patented  article,  e.  g., 
"Tucker  Spring-Bed  "  became  common  prop- 
erty after  the  expiration  of  the  patent. 
Tucker  Mfg.  Co.  rs.  Boyington,  9  Off.  Gaz., 
455;  Illinois  ;  N.  D.,  1875. 

The  exclusive  right  ''o  use  a  trade-mark  of 
a  medicine  will  pass  ^y  assignment  to  the 
person  who  has  obtained  the  right  to  make 
and  sell,  and  who  does  make  and  sell  the 
medicine  according  to  the  original  formula. 
Filkins  vs.  Blackman,  13  Blatch,  440  ;  Conn, 
1876.  Equity. 

When  two  persons,  associated  in  business 
for  the  manufacture  and  sale  of  a  commod- 
ity invented  by  one  of  them,  jointly  adopt  a 
trade-mark  for  it,  they  are  equally  entitled 
to  its  use  after  the  dissolution  of  their  con- 
nection. Tavlor  vs.  Bothin,  5  Sawyer ,  584; 
Cal.  D.,  1879'. 

Damages  for  Infringement. — Is  entitled  to 
recover  to  the  extent  of  bis  damages  by  the 
loss  of  sales  and  defendant's  profits,  even 
though  the  articles  sold  as  and  for  his  were 
not  inferior  in  quality  to  his.  Taylor  ts. 
Carpenter,  2  Wood;  &  M  i  ;  Mass.',  1846. 

When  no  specific  damages  are  proved, 
nominal  damages  will  be  given.  Coffin  ts. 
Brunton,  4  McLean,  $16  ;  Ind.,  1849. 

When  the  plaintiff  has  long  acquiesced  in 
the  infringement  and  has  unreasonably  de- 
layed seeking  relief,  he  is  not  entitled  to  an 
account  of  profits.  McLean  t».  Flemming, 
6  Otto.,  245,  1877. 

Statutes. — The  certificate  of  registry  is 
not  conclusive  evidence  that  the  device 
claimed  is  a  lawful  trade-mark,  and  plaintiff 
is  entitled  to  its  exclusive  use.  Moorman  vs. 
Hoge,  2  Saywer,  78  ;  Cal.,  1871. 

Ihe  act  of  C.  of  June  18,  1874,  is  to  be  re- 
garded as  an  amendment  of  the  copyright 
law.  To  acquire  a  copyright  in  any  print  or 
label  deposited  in  the  Patent  Office,  it  is  es- 
sential that  the  title  of  the  print  or  label  be 
first  deposited  (before  use),  m  pursuance  of 
the  provisions  of  the  R.  S.  concerning  copy- 
rights. Marsh  Vs.  Warren,  14  Blatch.,  263  ; 
New  York,  S.  D.,  1877. 

Lables  to  be  used  on  bottles  containing 
medicine  are  not  the  subjects  of  copyright. 
Scoville  vs.  Toland,  6  West.  Law  J.,  84  ; 
Ohio,  1848. 

Trade-mark  statutes  of  1870  and  1876  are 
unconstitutional.  U.  S.  vs  Steffens  16  O.  G. 
999  ;  U.  S.  Supreme  Court,  October  Term, 
i879-  .  ,        ,. 


fir"* 


'>! 


I    i 


«!•■ 


M^uliMHI 


CHAPTER  III. 


Connecticut. — "  An  act  ooncerninK  trade- 
marks" was  approved  March  25,  1880.  It 
provides  that  any  person  entitled  to  the 
exclusive  n^d  of  any  lawful  trade-mark,  or 
who  intends  to  adopt  and  use  a  lawful  trade- 
mark, may  file  for  record  such  trade-mark 
in  the  oflBce  of  the  Secretary  of  that  State  in 
form  prescribed  by  the  act.  That  false 
dWearins:  in  the  proceedings  shall  be  perjury, 
and  that  the  Secretary  of  State  may  refuse 
ta  record  the  mark  filed  if  he  believes  the 
statement  accompuiying  it  to  be  untrue.  A 
mandamus  is  allowed  to  compel  the  record- 
ing. "  Every  party  having  the  lawful  ri^ht 
to  make  and  file  such  certificate  and  affi- 
davit, upon  the  recording  of  the  same  in 
said  office,  shall  become  entitled  to  the  ex- 
clusive use  of  the  trade-mark  therein  de- 
scribed, for  so  long  as  he  or  his  assigns  shall 
continue  to  be  engaged  in  the  manufacture 
or  sale  of  the  merchandise  or  description  of 
goods  to  which  it  is  appaopriated."  Right 
assi^able  in  writing.  Copies  of  reconl,  with 
certificate  of  Secretary  of  State  under  the  seal 
of  the  State,  prima  facie  evidence  of  title. 
Infringer  of  recorded  trade-mark  with 
knowledge  of  record  shall  pay  to  owner 
double  damages,  and  such  sum  in  addition 
thereto  (not  exceeding  $500)  as  the  Court 
may  order  to  be  added.  Rights  to  any 
existing  trade-mark  not  abridged  by  this 
act.  "  §  8.  Every  person  who  fraudulently 
and  witi  intent  to  deceive,  affixes  any 
trade-mark  recorded  under  this  act,  or  any 
such  imitation  thereof  as  is  calculated  to 
deceive,  to  any  goods,  receptacle  or  package 
simil{ff  in  descriptive  properties  to  those  to 
which  such  trade-mark  is  appropriated  :  or 
who  fraudulently  and  with  intent  to  deceive 
places  in  any  receptacle  or  packago  to  which 
IS  lawfully  affixed  a  recorded  trade-mark, 
goods  other  than  those  which  said  trade- 
mark is  designed  and  appropriated  to  pro- 
tect ;  or  who  fraudulently  and  with  intent 
to  deceive,  deals  in  or  keeps  for  sale  any 
goods  with  a  trade-mark  fraudulently  af- 
fixed, as  above  described  in  this  section; 
or  any  goods  contained  in  any  package 
or  receptacle  having  a  lawful  trade-msfk, 
but  not  being  such  goods  as  said  trade-mark 
was  designed  and  appropriated  to  protect, 
^liall   be  fined   not   more    than    I500    or 


imprisoned  not  more  than  30  days,  or  both." 
Delaware. — In  1859  an  act  was  passed  en- 
tittled  "  An  action  the  protection  of  manu- 
facturers and  venders  of  mineral  waters, 
porter,  aid  and  other  beverages  in  bottles." 
This  was  amended  in  1861,  and  re-enacted 
in  1879  (Chap.  92).    It  provides  for  the  filing 
by  venders  of  such  beverages  of  their  marks 
in  the  office  of  the  Secretary  of  State,  and 
publication  for  six  weeks  in  a  newspaper  of 
the  county   where  the  same  are  manufac- 
I  tured  and  sold.     The  person  refilling  or  traf- 
I  ficking  in,  without  the  consent  of  the  owner, 
bottles,  &c. ,  bearing  marks    so   filed    and 
;  published,  is  liable  to  a  penalty  of  50  cents 
I  for  every  bottle  for  first  offense,  and  $5  for 
;  every  subsequent  offense.    (§3.)  "That  the 
fact  of  any  person,  other  than  the  rightful 
i  owner  thereof,  using  any  such  bottles  for  the 
j  sale  therein  of  any  beverages  shall  be  prima 
\  facie  proof  of  the  unlawful  use  or  purchase 
of  such  bottles  as  aforesaid."    The  issue  of  a 
search  warrimt,  ^  to  discover  alleged  wrong- 
fully used  bottles',  is  provided  for  in  language 
similar  to  that  of  the  New  York  statute.  (See 
New  York,  §  371  post.) 

Montana. — The  Legislative  Assembly,  at 
its  first  session  in  1865,  provided  for  the 
registration  of  marks  for  animals,  and  punish- 
ment for  wrongful  use  or  destruction  of 
marks  (ordered  published,  laws  of  1879, 
p  58),  and  also  for  the  counterfeiting  of 
trade-marks  by  §  79  &  80,  Chap.  7,  of  "  iji 
act  concerning  crimes  and  punishments,"  as 
follows  s  "  That  every  person  who  thall 
I  knowmgly  and  willfully  forge  or  coun- 
terfeit, or  cause  or  procure  to  be  forged  or 
\  counterfeited,  upon  any  goods,  wares  or 
merchandise,  the  private  stamps  or  labek  of 
any  mechanic  or  manufacturer,  with  intent 
to  defraud  the  purchasers  or  manufacturers 
of  any  goods,  wares  or  merchandise  whatso- 
ever, shall,  on  conviction  thereof ,  be  deemed 
guilty  of  a  misdemeanor,  and  shall  be  pun- 
ished by  imprisonment  in  the  county  jail  iov 
a  term  not  exceeding  six  months,  or  by  a 
fine  not  less  than  $300  nor  more  than  |6oo. 

"  §  80.  That  any  person  who  shall  sell  any 
goods,  wares  or  merchandise,  having  thenion 
any  forged  or  counterfeited  stamps  or  labels, 
purporting  to  be  stanps  or  labels  of  any  me- 
ehanio  or  maaufaoturer,  knowing  the  same 


-J. „ 


86 


to  be  forged  or  counterfoited,  without  d.ia-  i 
ologing  the  fact  to  the  purchaser,  shall,  on  j 
conviction  thereof,  be  deemed  ffu'lty  of  a  i 
misdemeanor,  and  nhall  be  punished  by  im-  ' 
prisonment  in  the  county  jail  for  a  term  not  | 
exceeding  six  months,  or  by  a  fine  not  less  \ 
than  I3U0  nor  more  than  |6oo."  In  the  j 
revision  of  this  act,  approved  Jan.  12,  1872,  | 
the  same  sections  appear  as  J:;  91  &  92. 

This  was  followed  in  1874  by  "  An  act  in 
relation  to  trade-marks  and  brands,"  which 
provided  that  any  person  who  desired  the 
exclusive  use  within  the  territory  of  any 
name,  mark,  brand,  print,  designation  or 
description  for  any  article  of  manufacture 
or  trade,  or  for  any  mill,  hotel,  factory,  ma- 
chine shop  or  other  business,  shall  register 
such  mark,  &c.  (if  it  has  not  been  previously 
registered),  and  thereafter  the  registrants 
shall  have  the  exclusive  right  to  use  said 
mark.  Figures,  letters  or  Roman  numerals 
not  protected  as  marks.  Any  person  who 
shall  use  a  tegistered  mark  for  the  purpose 
of  deception  and  profit  is  guilty  of  a  misde- 
meanor.   Penalty,  fine  from  $100  to  |iooo. 

Any  who  shall  use  a  second-hand  sack,  box, 
&c.,  on  which  has  been  placed  the  name, 
mark,  &c.,  the  property  of  another,  for  the 
purpose  of  deception,  is  guilty  of  a  misde- 
meanor.    Penalty  as  above. 

Fee  of  Recorder,  $1.  Powers  of  courts 
of  equity  to  enjoin  improper  use  of  trade- 
mark, &c.,  excepted  from  provisions  of  act. 
All  fines  »r>der  act  to  go  to  school  fund.  All 
acts  in  conflict  repealed.  Act  to  take  effect 
July  1,  1874. 

Missiasippi.—lu  1880  "  The  Revised  Code" 
of  the  statute  laws  was  adopted.  §  2841 
reads  :  "  Every  person  who  shall  knowingly 
and  willfully  forge  or  counterfeit,  or  cause 
or  procure  to  be  forged  or  counterfeited,  any 
representation,  likeness,  similitude,  copy  or 
imitation  of  the  private  stamps,  wrappers  or 
labels  u8U{illy  affixed  by  any  mechanic  or 
manufacturer  to,  and  used  by  such  mechanic 
or  manufacturer  on,  in  or  about  the  sale  of 
any  goods,  wares  or  merchandise  whatso- 
ever, upon  conviction  thereof  shall  be 
deemed  guilty  of  a  misdemeanor,  and  shall 
be  punished  by  imprisonment  in  the  county 
jail  for  a  term  not  less  than  three  months, 
nor  more  than  two  years." 

§  2842  :  "  Every  person  who  shall  have  in 
his  possession  any  die,  plate,  engraving  or 
printed  label,  stamp  or  wrapper,  or  any 
representation,  likeness,  similitude,  copy  or 
imitation  of  the  private  stamp,  wrapper  or 
label  UHually  fixed  by  any  mechanic  or  manu- 
facturer to,  and  used  by  such  mechanic  or 
manufacturer  on,  in  or  about  the  sale  of  any 
goods,  wares  or  merchandise,  with  intent  to 
use  or  sell  the  said  die,  plate  or  engraving, 
or  printed  stamp,  label  or  wrapper,  for  the 
purpose  of  aiding  or  assisting  in  any  way 
whatever  in  vending  any  goods,  wares  or 
merchandise,  in  imitation  of,  or  intended  to 
resemble  and  be  sold  for,  the  goods,  wares  or 
merchandise  of  such  mechanic  or  manufac- 
turer, shall,  upon   oonviction  thereof,    be 


deemed  guilty  of  a  misdemeanor,  and  shall 
be  punished  by  imprisonment  in  the  "r*  nty 
jail  for  a  term  not  less  than  thre<>  .aths, 
nor  more  tha'.i  one  year." 

^2843:  "Every  person  who  shall  vend 
any  goods,  wares  or  merchindi&e  having 
thereon  any  forged  or  counterff '.t  stamp  or 
label,  imitating,  resembling  or  purporting  to 
be  the  stamp  or  label  of  any  mechanic  or 
manufacturer,  knowing  the  same  to  be 
forged  or  counterfeited,  and  resembling  or 
purporting  to  be  imitations  of  the  stamps  or 
labels  of  such  mechanic  or  manufacturer, 
without  disclosing  the  fact  to  the  purchaser 
thereof,  shall,  upon  conviction,  be  deemed 
guilty  of  a  misdemeanor,  and  shall  be  pun- 
ished by  imprisonment  in  the  county  jail  for 
a  term  not  exceeding  one  year,  and  by  a 
fine,  not  less  than  fifty  nor  more  than  five 
hundred  dollars,  or  by  both  such  fine  and 
imprisonment." 

Nebrcuka. — The  law  of  Nebraska,  digested 
at  p.  7,  is  contained  in  the  criminal  code 
under  the  head  of  forgery,  and  is  included 
with  records,  deeds,  wills,  &e.  Sections 
137.  138  and  139  of  the  criminal  code  also 
provide  (§  137)  that  sug^r,  rice,  tobacco, 
soap,  starch,  candles,  cheese,  or  any  goods 
or  articles  sold  by  weight  packed  m  kegs, 
barrels,  tierces,  casks',  boxes,  hogsheads,  or 
any  case  whatever,  such  kegs,  &c.,  shall  be 
marked  with  the  weights  both  of  the  package 
and  the  contents.  It  also  provides  (^  138) 
that  "any  brand,  mark  or  stamp  put  upon 
any  keg,  barrel,  box,  cqjtk,  hogshead  or  case 
by  the  manufacturer  indicating  the  article, 
its  quality,  quantity,  or  the  manufacturer's 
name,  or  either  of  them,  shall  be  considered 
the  manufacturer'*  certified  brand,  stamp  or 
mark,"  &c.,  "  which  shall  be  subject  to  no, 
erasure  or  obliteration."  Nor  shall  it  be' 
transferred  for  the  purpose  of  refilling 
for  the  purpose  of  selling  an  inferior 
article. 

Penalty  (§  139) — The  pa  ^y  violating  pro- 
visions of  above  sections  "  shall  in  all 
cases  pay  to  the  party  •  aggrieved  dou- 
ble in  value  of  the  difference  between 
the  actual  quantity  contained  in  such 
keg,"  &c.,  ''and  the  net  quantity  or 
weight  for  which  the  same  may  have  been 
sold  ;"  and  for  the  first  offense  be  subject  to 
a  fine  of  $20  to  $60,  or  imprisonment  in 
county  jail  30  to  60  days.  Second  and  sub- 
sequent offenses — fine,  I50  to  $100,  or  impris- 
onment 30  to  qo  days.    (As  amended,  1875.) 

New  Jersey. — March  11,  1881,  "  An  act 
for  the  better  protection  of  manufacturers 
and  bottlers  of,  and  dealers  in  mineral 
waters,  beer,  ale,  porter  and  other  bev- 
erages," was  approved.  It  recites  that  manu- 
facturers and  bottlers  may  file  in  County 
Clerk's  Oflice  description  of  boxes  or  bottles 
and  marks  thereon,  and  may  publish  same  for 
four  weeks  in  newspapers  of  county.  It  is 
made  unlawful  to  use,  sell,  buy,  &c.,  any 
boxes  or  bottles  marked  or  stamped  and  re- 
gistered and  published.  Penalty  for  oo  doing 
not  leas  than  $35  or  more  than  I50.    It.  says: 


lemeaiior,  and  aball 
inient  in  the  "'''  nty 

than  threp       .uths, 

» 

son  who  shall  vend 
merchqndi&e  having 
ounterff't  stamp  or 
lin^  or  purporting  to 
of  any  mechanic  or 
g  ihe  same  to  be 
and  resembling  or 
ons  uf  the  stamps  or 
ic  or  manufacturer, 
act  to  the  purchaser 
nviotion,  be  deemed 
r,  and  shall  be  pun- 
in  the  county  jail  for 
one  year,  and  by  a 
nor  more  than  five 
'  both  such  fine  and 

>f  Nebraska,  digested 
n  the  criminal  code 
'gery,  and  is  included 
wills.  &c.  Sections 
he  criminal  code  also 
sugar,  rice,  tobacco, 
iheese,  or  Anj  goods 
ight  packed  in  kegs, 
boxes,  hogsheads,  or 
;h  keKs,  &c.,  shall  be 
ts  both  of  the  package 
also  provides  (^  138) 
k  or  stamp  put  upon 
[qjsk,  hogsbeaid  or  case 
ndicating  the  article, 
the  manufacturer's 
n,  shall  be  considered 
bified  brand,  stamp  or 
ihall  be  subject  to  no. 
Nor  shall  it  be' 
purpose  of  refilling 
selling    an    inferior 

pa  i<y  violating  pro- 

tions    "  shall   in    all 

rty  •  aggrieved    dou- 

difference    between 

contained    in    such 

le    net   quantity    or 

same  may  have  been 

offense  be  subject  to 

or  imprisonment  in 

rs.     Second  and  sub- 

150  to  $100,  or  impris- 

(As  amended,  1875.) 

II,   1881,    "  An  act 

of  manufacturers 

dealers    in    mineral 

ter  and  other  bev- 

It  recites  that  manu- 

may   file  in  County 

n  of  boxes  or  bottles 

may  publish  same  for 

>ers  of  county.    It  is 

sell,  buy,  &c.,  any 

.  or  stamped  and  re- 

Penolty  for  so  doing 

ethanlso.    It.  says: 


mm 


27 


in 


'  That  the  fact  of  any  person  or  persons 
other  than  the  rightful  owner  or  owners 
thereof  using  such  box  or  boxes,  bottle  or 
bottles,  for  the  sale  therein  of  any  mineral 
water,  beer,  ale,  porter  or  beverge,  or  any 
junk  vender,  or  dealer  in  bottles  having 
secreted  in  or  upon  his,  her  or  their  premises, 
or  any  other  place  or  places,  or  having  in 
his,  her  or  their  possession  unlawfully  any  of 
such  boxes  or  bottles,  shall  be  prima  facie 
proof  of  the  unlawful  use  and  purchase  of 
such  box  or  boxes,  bottle  or  bottles,  as  afore- 
said." 

Owners,  'ipon  belief,  may  make  complaint 
of  the  unlawful  use,  &o.,  of  their  boxes  or 
bottles  before  any  justice.  Magistrate  to 
issue  process  or  search  warrant  to  bring  the 
property  or  person  before  him.  Offender  to 
enter  into  recognizance  in  |ioo  to  appear  at 
such  time  as  the  justice  shall  appoint  for  a 
hearing,  and  in  default  of  recognizance  to 
be  committed  to  jail  to  abide  the  hearing. 
If  found  guilty,  the  justice  shall  render 
judgment  against  the  person  arrested  for  an 
amount  not  less  than  $25,  or  more  than  $50, 
and  .soatB  of  proceeding,  and  in  default  of 
payment  shall  issue  execution  against  the 
offender  and  deliver  bottles  and  boxes  into 
the  possession  of  the  owner. 

If  no  person  is  found  by  constable,  the 
boxes  and  bottles  may  be  seized  and  deliv- 
ered to  the  owner  after  summary  trial. 

Parties  may  demand  trial  by  jury.  Ap- 
peals may  be  had  to  general  quarter  sessions. 

New  York. — The  new  penal  code,  passed 
July  26th,  1881,  which  by  its  terras  will  be- 
come a  law  on  the  first  day  of  May  1882, 
contains  the  following  sections  in  relation  to 
trade-marks.    Title  XI.      . 

"  Section  364. — A  person  who,  in  a  case 
where  provision  for  the  punishment  of  the 
offense  is  not  otherwise  specially  made  by 
statute,  with  intent  to  defraud  ; 

1.  Falsely  makes  or  counterfeits  a  trade- 
mark ;  or, 

2.  Affixes  to  any  article  of  merchandise, 
a  false  or  counterfeit  trade- mark,  knowing 
the  same  to  be  false  or  counterfeit,  or  the 
genuine  trade-mark  of  another,  without  the 
latter's  consent ;  or, 

3.  Sells,  or  keeps  or  offers  for  sale,  goods 
to  which  is  affixed  a  false  or  counterfeit 
trade-mark,  or  an  imitation  of  a  trade-mark, 
or  the  genuine  trade-mark  of  another,  with- 
out the  latter's  consent ;  or, 

4.  Has  in  his  possession  a  counterfeit 
tnule-mark,  knowing  it  to  be  counterfeit, 
or  a  die,  plate,  brand,  or  other  thing  for  the 
purpose  of  falsely  making  or  counterfeiting, 
or  causing  to  be  counterfeited,  a  trade- 
mark ;  Is  guilty  of  a  misdemeanor." 

"Sec.  365. — The  term  "article  of  mer- 
chandise," as  used  in  this  title,  signifies  any 
g^oods,  wares,  work  of  art,  commodity,  com- 
pound, mixture,  or  other  preparation  or 
thing  which  may  be  lawfully  kept  or  offered 
for  sale." 

"Sec.  366.  The  word  'trade-mark,'  as 
nsed  in  tlus  title,  includes  any  latter,  word. 


device,  emblem,  figure,  seal,  stamp,  diagram, 
brand,  wrapper,  ticket,  label,  or  other 
mark,  lawfully  adopted  by  any  person, 
being  a  mechanic,  manufacturer,  merchant, 
druggist  or  tradesman,  and  usually  affixed 
by  him  to  an  article  of  merchandise,  to  de- 
note that  the  same  is  or  has  been  imported, 
manufactured,  produced,  sold,  compounded, 
tiottled,  packed  or  otherwise  prepared  for 
sale  by  himi ;  and  also  a  signature  or  mark, 
used  or  commonly  placed  by  a  painter, 
sculptor  or  other  artist  upon  a  painting, 
drawing,  engraving,  statue  or  other  work 
of  art,  to  indicate  that  the  same  was  designed 
or  executed  by  him." 

"  Sec.  367.  A  trade-mark  is  deemed  to  be 
affixed  to  an  article  of  merchandise  within 
the  meaning  of  this  title,  when  it  is  ^>laced 
in  any  manner  in  or  upon,  either 

I.  The  article  itself  ;  or 

3.  A  box,  bale,  barrel,  bottle,  case,  cask, 
or  other  package  or  vessel,  or  a  cover,  wrap- 
per, stopper,  brand,  label  or  any  other  thing 
in,  by  or  with  which  the  goods  are  packed, 
inclosed  or  otherwise  prepared  for  sale." 

"  Sec.  368.  An  imitation  of  a  trade-mark 
within  the  meaning  of  this  title  is  deemed  to 
bo  a  counterfeit  trade  mark,  when  it  so  far 
resembles  a  genuine  trade-mark  as  to  be 
likely  to  induce  the  belief  that  it  is  genuine." 

*' Sec.  369.  Whenever  a  person  engaged  in 
manufacturing,  bottling  or  selling  in  bottles, 
soda,  mineral  waters,  porter,  ale,  cider  or 
small  beer,  has  filed  and  piftlished  in  the 
manner  authorized  by  law,  a  description  of 
a  name,  mark  or  label,  usually  stamped  by 
him  on  the  bottles  containing  such  bev- 
erage, every  other  person  who,  .  with- 
out the  written  consent  of  such  manu- 
facturer or  dealer,  refills  with  any  bev- 
erage, whether  genuine  or  otherwise, 
with  intent  to  sell  the  same,  any  bottles 
stamped  with  such  name,  mark  or  label, 
and  every  person  who  sells,  disposes  of, 
purchases  or  traffics  in  such  bottles,  is  liable 
to  a  penalty  of  50  cents  for  every  bottle  so 
filled,  sold,  bought,  disposed  of  or  trafficked 
in,  for  the  first  offense,  and  $5  for  every 
bottle  so  filled,  sold,  bought,  disposed  of 
or  trafficked  in,  for  every  subsequent 
offense." 

"  Sec.  370.  A  person  who  keeps  any  bottles 
such  as  are  designated  in  the  last  section, 
without  the  written  consent  of  the  manufac- 
turer (unless  it  appears  that  thej  were  not 
kept  with  intent  to  refill),  or  use  or  sei'  them 
in  violation  of  the  last  section,  is  li  ,ble  to 
the  penalty  therein  prescribed." 

"Sec.  371.  Whenever  a  manufacturer  or 
dealer  mentioned  in  Sec.  369,  or  his  agent, 
makes  oath  before  a  magistrate  that  he  has 
reason  to  believe,  and  does  believe,  that  any 
of  his  bottles,  stamped  and 'registered  as 
mentioned  in  that  seotion,  ore  unlawfully 
used  by  any  person  selling  or  manufacturing 
mineral  water  or  other  beverage,  or  that  any 
junk  dealer  or  vender  of  bottles  has  any  of 
such  bottles  secreted  in  any  place,  the 
magistrate  must  thereupon  isa^ie  a  search 


i 


** 


mam 


rl 


M 


I 


warrant  to  discover  and  obtain  the  same, 
and  may  cause  to  be  brought  before  him  the 
person  in  whose  possession  the  buttles  are 
found,  and  inquire  into  the  circumstances  of 
his  possession,  and  if  the  ■magistrate,  on 
summary  examination,  finds  that  such  per- 
son has  been  guilty  of  a  violation  of  sec. 
369,  he  may  impose  the  fine  therein  pre- 
*  scribed,  and,  if  the  same  be  not  paid,  may 
commit  such  person  to  prison  for  a  term  not 
exceeding  i;  days." 

Ohio. — A  revision  of  the  Statutes  of  Ohio 
was  made  and  published  in  1879.  The 
■ynopsii  at  t;^  iq  is  substantially  correct. 
April  9,  1880,  an  act  was  passed  "  To  pro- 
tect manufacturers,  bottlers  and  dealers  in 
ginger  ale,  seltzer  water,  soda  water,  mineral 
water  and  other  beverages  from  the  lo^s  of 
their  bottles  and  boxes. "  It  provides  that  man- 
ufacturers of  ginger  ale,  &c,,  may  file  with 
Secretary  of  State  and  County  Clerk  de- 
scription of  bottles  used  by  them,  and  cause 
the  same  to  be  printed  in  a  newspaper  of  the 
oouaty  six  times  a  week  for  six  weeks.  It 
is  made  unlawful  to  use  such  bottles  without 
consent  of  ownnrs.  A  violation  of  this  pro- 
vision is  made  a  misdemeanor,  and  the  cul- 
prit shall  be  fined  $5  for  each  box  and  50 
cents  for  each  bottle  trafficked  in,  destroyed, 
&c.,  and  double  that  sum  for  second  offense. 

It  is  provided  that  owner  may  apply  to  a 

Sstice,  on  aflSdavit  that  he  has  reason  to 
lieve  and  does  believe  that  this  act  is 
being  violated,  for  a  search  warrant,  and 
upon  search  bein;;  made  if  any  such  bottles 
are  found  the  officer  shall  arrest  the  persons 
named  in  the  warrant  and  bring  them  before 
the  justice  for  trial. 

United  Stales. — A  new  federal  trade- 
mark statute  was  approved  March  3,  1881, 
as  fo'lows  : 

An  Act  to  authorize  the  registration  of 
trade-marks  and  protect  the  same.  Ap- 
proved March  3,  1881. 
Be  it  enacted  by  the  Senate  and  House 
of  Representatives  of  the  United  States  of 
America  in  Congress  assembled,  That  owners 
of  trade-marks  used  in  commerce  with  for- 
eign nations,  or  with  the  Indian  tribes,  pro- 
vided such  owners  shall  be  domiciled  in  the 
United  States,  or  located  in  any  foreign 
country  or  tribes  which  by  treaty,  conven- 
tion, or  law,  affords  similar  privileges  to 
citizens  of  the  United  States,  may  obtain 
registration  of  such  trade-marks  by  comply- 
ing with  the  following  requirements : 

I.  By  causing  to  be  recorded  in  the  Patent 
Office  a  statement  specifying  name,  domi- 
cile, location  and  citizenship  of  the  party 
applying ;  the  class  of  merchandise  and  the 
particular  description  of  goods  comprised  in 
such  class  to  which  the  particular  trade- 
mark has  been  appropriated ;  a  description 
of  the  trade-maric  itself,  with  fac-similes 
thereof,  and  a  statement  of  the  mode  in 
which  the  same  is  applied  and  affixed  to 
goods,  and  the  length  of  time  during  which 
the  trade-ntark  has  been  used, 
a.  By  paying  into  the  Treasury  of  the 


United  States  the  sum  of  $35,  and  comply- 
ing with  such  regulations  as  may  be  pre- 
scribed by  the  Commissioner  of  Patents. 

Sec.  2.  That  the  application  prescribed  in 
the  foregoing  section  must,  in  order  to 
create  any  right  whatever  in  favor  of  the 
party  filing  it.  be  accompanied  by  a  written 
declaration  verified  by  the  person,  or  by  a 
member  of  a  firm,  or  by  an  officer  of  a  cor- 
poration applying,  to  the  effect  that  such 
party  has  at  the  time  a  right  to  the  use  of 
the  trade-mark  sought  to  be  registered,  and 
that  no  other  person,  firm,  or  corporation 
has  the  right  to  such  use,  either  in  the  identi- 
cal form  or  in  any  such  near  resemblance 
thereto  as  might  be  calculated  to  deceive  ; 
that  such  trade- mark  is  used  in  commerce 
with  foreign  nations  or  Indian  tribes,  as 
above  indicated ;  and  that  the  description 
and  fac  similes  presented  for  registry  truly 
represent  the  trade-mark  sought  to  be  regis- 
tered. 

Sec.  3.  That  the  time  of  the  receipt  of  anv 
such  application  shall  be  noted  and  recorded. 
But  no  alleged  trade-mark  shall    be  regis- 
tered unless  the  same  appear  to  be  lawfully 
used  as  such  by  the  applicant  in  foreign  com- 
merce or  commerce  with  the  Indian  tribes,  as 
above  mentioned,  or  is  within  the  provision 
of  a  treaty,  convention,  or  declaration  with  a 
foreign  power ;  nor  which  is  merely  the  name 
of  the  applicant ;  nor  which  is  identical  with 
a  registered  or  known  trade -mark  owned  by 
anouier  and  appropriate  to  the  same  class  of 
merchandise,  or  which  so  nearly  resembles 
some  other  person's  lawful  frade-mark  as  to 
be  likely  to  cause  confusion  or  mistake  in  the 
mind  of  the  public,  or  to  deceive  purchasers. 
In  an  application  for  registration  the  Commis- 
sioner of  Patents  shall  decide  the  presump- 
I  tive  lawfulness  of  claim  to  the  alleged  trade- 
!  mark  ;  and  in  any  dispute  between  an  appli- 
I  cant  and  a  previous  registrant,  or  between 
!  applicants,  he  shall  follow,  so  far  us  the 
same  may  be  applicable,  the  practice    of 
courts  of  equity  of  the  United  States  in 
':  analogous  cases. 

I  iS^.  4.  That  certificates  of  registry  of 
'  trade-marks  shaU  be  issued  in  the  name  of 
the  United  States  of  America,  under  the  seal 
of  the  Department  of  the  Interior,  and  shall 
;  be  signed  by  the  Commissioner  of  Patents, 
and  a  record  thereof,  together  with  printed 
copies  of  the  specifications,  shall  be  kept  in 
books  for  that  purpose.  Copies  of  trade- 
marks and  of  statementi  and  declarations 
filed  therewith,  and  certificates  of  registry  so 
signed  and  sealed,  shall  be  evidence  in  any 
suit  in  which  such  trade-marks  shall  be 
brought  in  controversy. 

Sec.  5.  That  a  certificate  of  registry  shall 
remain  in  force  for  thirty  years  from  its 
date ;  except  in  cases  where  the  trade-mark 
is  claimed  for  and  applied  to  articles  not 
manufactured  in  this  country,  and  in  which 
it  receives  protection  under  the  laws  of  a 
foreign  country  for  a  shorter  period,  in 
which  case  it  shall  cease  to  have  any  fonw 
in  this  country,  by  virtue  of  this  aet,  at  the 


-.!_ 


135,  and  comply- 
as  may  be  pre- 
r  of  Patents, 
on  preHoribed  in 
ist,  in  order  to 
*  in  favor  of  the 
lied  by  a  written 
)  person,  or  by  a 
oSScer  of  a  cor- 
effect  that  such 
ight  to  the  use  of 
le  registered,  and 
fi,  or  corporation 
ither  in  the  identi- 
near  resemblance 
ated  to  deceive  ; 
wed  in  commerce 
[ndian  tribes,  as 
t  the  description 
for  registry  truly 
ought  to  be  regis- 

bhe  receipt  of  anv 
ited  and  recorded, 
c  shall  be  regis- 
aar  to  be  lawfully 
nt  in  forei^  com- 
e  Indian  tribes,  as 
iun  the  provision 
leclaration  with  a 
8  merely  the  name 
1  is  identical  with 
e-mark  owned  by 

the  same  class  of 
nearly  resembles 
frade-mark  as  to 
t  or  mistake  in  the 
iceive  purchasers, 
ation  the  Oommis- 
ide  the  presump- 
th^  alleged  trade- 
between  an  appli- 
trant,  or  between 
V,  so  far  OS  the 

the  practice  of 
CJnitea  States  in 

18  of  registry  of 
1  in  the  name  of 
ca,  under  the  seal 
nterior,  and  shall 
Bioner  of  Patents, 
bher  with  printed 
I,  shall  be  kept  in 
Copies  of  tntde- 
and  declarations 
sates  of  registry  so 
B  evidence  in  any 
i-marks  shall   be 

e  of  registry  shall 
r  years  from  its 
*e  the  trade-mark 
1  to  articles  not 
;ry,  and  in  which 
ler  the  laws  of  s 
orter  period,  in 
to  have  any  force 
of  this  act,  at  the 


2d 


time  that  such  trade  mark  ceases  to  be  ex- 
clusive property  elsewhere.  At  any  time 
during  the  six  months  prior  to  the  expira- 
tion of  the  term  of  thirty  years,  8uch  regis- 
tration may  be  renewed  on  the  same  terms, 
and  for  a  like  period. 

1SS0O.  6  That  applicants  for  registration 
under  this  act  shall  be  credited  for  any  fee, 
or  part  of  a  fee,  heretofore  paid  into  the 
Treasury  of  the  United  States  with  intent 
to  procure  protection  for  the  same  trade- 
mark. 

See.  7.  That  registration  of  a  trade-mark 
shall  he  prima  facie  evidence  of  ownership. 
An^  person  who  shall  reproduce,  counter- 
feit, copy  or  colorably  imitate  any  trade- 
mark registered  under  this  act,  and  affix 
the  same  to  merchandise  of  substantially 
the  same  descriptive  properties  as  those  de- 
scribed in  the  registration,  shall  be  liable  to 
an  action  on  the  case  for  damages  for  the 
wrongful  use  of  said  trade-mark,  at  the  suit 
of  the  owner  thereof;  and  the  party  ag- 
grieved shall  also  have  his  remedy  according 
to  the  course  of  equity,  to  enjoin  the  wrong 
ful  use  of  such  trade-mark  used  in  foreign 
commerce  or  commerce  with  Indian  tribes, 
as  aforesaid,  and  to  recover  compensation 
therefor  in  any  court  having  jurisdiction 
over  the  person  guilty  of  such  wrongful  act, 
and  courts  of  the  United  States  shall  have 
original  and  appellate  jurisdiction  in  such 
cases,  without  regard  to  the  amount  in  con- 
troversy. 

Sec.  8.  That  no  action  or  suit  shall  be 
maintained  under  the  provisions  of  this  act 
in  any  case  when  the  trade-mark  is  used  in 
any  unlawful  bv-dness,  or  upon  any  article 
injurious  in  itse'.f ,  or  which  mark  htm  been 
used  with  the  design  of  deceiving  the  public 
in  the  pnrchaie  of  merchandise,  or  under 
any  certificate  of  registry  fraudulently 
obtained. 

Sec.  9.  Thai  any  person  who  shall  procure 
the  registry  of  a  trade-mark,  or  of  himself 
as  the  owner  o'.  a  trade-mark,  or  an  entry 
respecting  a  tnide-mark,  in  the  office  of  the 
Commissioner  of  Patents,  by  a  false  or 
fraudulen'u  representation  or  declaration, 
orally  or  in  writing,  or  by  any  fraudulent 
means,  shall  be  liable  to  pay  any  damages 
sustained  in  consequence  thereof  to  the  in- 


jured party,  to  be  recovered  in  an  action  on 
the  case. 

Sec.  10.  That  nothing  in  this  act  shall  pre- 
vent, lessen,  impeach,  or  avoid  any  remedy 
at  law  or  in  equitv  which  any  party  aggrieved 
bjr  any  wrongful  'ise  of  any  trade-mark 
might  have  had  if  the  provisions  of  this  act 
had  not  been  passed. 

Sec  II.  That  nothing  in  this  act  shall  be 
I  construed  as  unfavorably  affecting  a  claim 
to  a  trade-mark  after  the  term  of  registra- 
tion shall  have  expired  ;  nor  to  give  cog- 
nisance to  any  court  of  the  United  States  in 
an  action  or  suit  between  citizens  of  the 
same  State,  unless  the  trade  mark  in  contro- 
versy is  used  on  goods  intended  to  be  trans- 
ported to  a  foreign  country,  or  in  lawful 
commercial  intercourse  with  an  Indian 
tribe. 

Sec.  13.  That  the  Commissioner  of  Patents 
is  authorised  to  make  rules  and  regulations 
and  prescribe  forms  for  the  transfer  of  the 
right  to  use  trade-marks  and  for  recording 
such  transfers  in  hia  office. 

<SSec.  13.  That  citizens  and  residents  of  this 
country  wishing  the  protection  of  trade- 
marks in  any  foreign  country,  the  laws  of 
which  require  registration  here  as  a  con- 
dition precedent  to  getting  such  protection 
there,  may  register  their  trade-marks  for 
that  purpose  as  is  above  allowed  to  foreign- 
ers, and  have  certificate  thereof  from  the 
Patent  Office. 

Virqinia.— By  an  act  approved  March  9. 
1880,  it  is  provided  that  manufacturers  and 
venders  of  beer,  mineral  water  and  other 
beverages  in  bottles,  may  file  with  the  clerk 
of  the  Corporation  Court  of  the  citv  of  Alex- 
andria a  description  of  such  bottles  and 
marks,  and  cause  the  same  to  be  published 
for  two  weeks  ia  a  daily  or  weekly  newspa- 
per published  in  said  city.  Clerk  to  copy 
and  index  files.     Fee,  $1. 

It  iB  made  unlawful  for  any  person,  with- 
out the  permission  of  the  owner,  to  fill  with 
beer,  mineral  water  or  other  beverage  any 
such  bottles  so  marked  and  not  bought  by 
him  of  such  owner.  Penalty,  50  cents  for 
each  bottle  so  filled,  &c.,  for  first  offense, 
and  9S  'or  subsequent  offense,  to  be  recov- 
ered as  other  fines  are  recovered. 


'■••■■■v. 


*^-|L.'j(jlllBi|l|i|tfil 


>.  mm  I  fM-mr^'r  • 


-J.„. 


if 


OHXPTER  IV. 


/otoa.— Shaver  vs.  Shaver  ($4  Iowa,  308, 
.1880).  Plaintiffs  and  defendant!  were  for 
a  period  partner*  in  the  manufacture  of 
wa^ni  at  Eldora.  On  diHoIution,  plaintiff 
acquired  all  the  property  of  the  Arm.  He 
continued  in  buainess,  and  in  1B74  adopted 
M  a  trade-mark  the  words,  "  Shaver  Wagon, 
Eldora,"  which  he  painted  on  all  wagons 
made  and  sold  by  him.  The  defendants, 
more  than  two  years  after,  commenced  the 
manufacture  of  wagons,  and  painted  thereon 
the  identical  words  used  as  the  trade-mark  of 
the  plaintiff.  They  changed  .somewhat  the 
form  of  inscribing  the  words,  and  painted 
their  own  initials  near  the  trade-mark. 
Defendants  were  enjoined.  It  was  held 
that  courts  o(  common  law  and  equity 
will,  in  the  absence  of  any  statute  upon  the 
subject,  protect  the  proprietor  of  a  trade- 
mark in  its  exclusive  use  ;  that  the  exclu- 
sive right  to  a  trade-mark  is  acquired  by  its 
use,  which  thn  law  does  not  require  shall  be 
continued  for  any  prescribed  length  of  time ; 
that  the  use  by  another  of  a  trade-mark 
used  to  indicate  the  quality  of  an  article 
sold,  though  placed  on  articles  of  equally 
good  quality,  and  without  any  intention  to 
defraud  either  the  proprietor  or  the  public, 
will  be  restrained  by  a  Court  of  Chancery, 
and  this  although  it  is  not  copied  with 
th»  fullest  accuracy,  if  the  copy  is  calcu- 
lated to  deceive  and  may  be  taken  for  the 
original. 

Meusttoktuetta. — Uagee  Furnace  Co.  vs. 
Xje  Barron  (137  Mass.,  115,  1879).  The 
plaintiff — a  manufacturer  of  stoves  and 
ranges  (not  patented) — put  upon  each  of 
them  a  name  and  number  as  a  trade-mark, 
and  also  placed  upon  such  of  their  separate 
parts  respectively  as  were  liable  to  be  worn 
oat  rapidly,  the  initial  letter,  and  the  num- 
ber of  the  stove  to  which  it  belonged.  Each 
of  these  parts  was  well  known,  hiul  acquired 
a  high  reputation,  and  was  sold  under  the 
mtme  of  the  letter  and  number  placed  upon 
it.  The  defendant  procured  some  of  these 
parts,  made  patterns  from  them  and  east 
from  the  patterns  parts  of  stoves  and  ranges, 
inferior  in  quality  to  the  plaintiff's,  but  uv- 
ing  all  their  peouliarities  of  ornamentation, 
lettering  and  numbering,  and  advertised 
these  parts  for  sale  as  manufactured  by  him- 


self, describing  the  parts  in  his  circulars  by 
the  names  used  to  designate  thorn  by  the 
plaintiff.  The  complaint  was  dismissed. 
The  court  say:  "  As  he  publisbei.  to  the 
world  the  fact  that  he  is  the  manufacturer 
of  what  he  sells,  and  does  not  attach  to  his 
goods  any  label  or  mark  apt  to  deceive  sub- 
sequent purchasers  from  his  vendees  as  to 
the  origin  of  the  goods,  he  cannot  be  re< 
garded  as  infringing  on  the  rights  of  the 
plaintiff."  (The  initial  letter  and  number  by 
themselves  do  not  appear  to  have  been 
treated  as  a  trade-mark). 

Connell  vs.  Reed  (laS  Mass..  477, 1880).  If 
a  person  can  have  a  trade-mark  in  the  words 
"  £ast  Indian"  in  connection  with  the  word 
"  remedy  "  upon  bottles  of  medicine  (which 
is  at  least  doubtful),  yet,  if  he  has  falsely 
adopted  and  used  these  wor4a  to  denote  ana 
to  indicate  to  the  public  that  the  medicines 
were  used  in  the  East  Indies,  and  that  the 
formula  for  them  was  obtained  there,  ho 
cannot  maintain  a  bill  in  equity  to  restrain 
an  infringement  of  such  trade- mark. 

Lawrence  Manufacturing  Company  vs. 
Lowell  Hosiery  Mills  (129  Mass.,  325,  1880). 
It  was  decided  that  numerals  used  on  goods 
to  denote  their  origin  and  not  their  quality, 
are  a  valid  trade-mark,  and  a  person  who 
uses  them  for  the  purpose  of  imitating  the 
trade  mark,  and  whose  use  is  calculated  to 
deceive,  and  does  deceive,  persons  buying  his 
goods,  will  be  enjoined,  even  though  he  use 
the  numerals  in  combination  with  other 
devices  which  he  has  a  right  to  use,  and* 
which  are  similar  to  devices  in  connection 
with  which  the  plaintiff  uses  them. 

Maryland. — Robertson,  appellant,  vs. 
Berry  &  Co.,  respondents  (50  Md.,  591, 
1878).  This  case  was  treated  as  belonging  to 
the  domain  of  trade  marks.  The  plaintiffs 
(respondents  here)  published  an  almanac  en- 
titled "J.  Qruber's  Hagerstown  Town  and 
Country  Almanac."  The  defendant  (appel- 
lant) also  published  an  almanac  in  similar 
style  and  general  appearance,  which  he  en- 
titled "  T.  G.  Robertson's  Hagerstown 
Almanac."  Defendant  had  been  enjoined 
in  the  court  below.  The  order  was  affirmed, 
"the  Court  said :  "  It  is  immaterial  to  ''• 
decision  of  this  case,  in  the  view  we  have 
taken  of  it,  whether  the  devices,  marks. 


^4 


1..- 


:il 


his  oiroulan  by 
ate  thorn  b^  the 

was  dismissed, 
publisher  to  the 
lie  manufacturer 
aot  attach  to  bis 
it  t(>  deceive  sub- 
>is  vendees  as  to 
le  cannot  be  re- 
he  rights  of  the 
irand  number  by 
r    to    have  been 

M..  477, 1880).  If 
aark  in  the  words 
L)n  with  the  word 
medicine  (which 
if  he  has  falsely 
vis  to  denote  and 
it  the  medicines 
and  that  the 
Ained  there,  ho 
[uity  to  restrain 
ide-mark. 

Company  vs. 
[ass.,  32s,  1880). 
Is  used  on  Koods 
ot  their  quality, 
a  person  who 
of  imitating  the 
is  calculated  to 
arsons  buying  his 
Q  though  he  use 
ion  with  other  _ 
ight  to  UM,  and' 
»  in  connection 

them. 

appellant,      v$. 

(50  Md.,   591, 

as  belonging  to 
The  plaintiffs 

an  almanac  en- 
itown  Town  and 
efendant  (appel- 
uanac  in  similar 
Be,  which  he  en- 
I's    Hagerstown 

been  enjoined 
er  was  aflSrmed. 
material  to  ' '  • 
le  view  we  have 
devices,  marks, 


pictures  and  word«,  in  the  manner  in  which 
thtfy  arH  cntlocated  and  combineil  upon  the 
two  outride  |NiKes  of  tho  complainants'  al- 
marsc,  he  reRardeil  as  a  trade-mark  proi>er, 
or  as  wroppem  or  iabeli,  or  as  the  title, 
or  particular  external  marks  which  an 
author  or  publisher  affixes  to  hif*  work  to 
distinguish  it,  because  the  grounds  of  relief 
in  equity  are  substantially  the  same  in  either 
case.  A  publishttr  or  author  has  either  in 
the  title  of  his  work,  or  in  the  application  of 
his  name  to  the  work,  or  in  the  particular 
marks  which  detignate  it,  a  speoieit  of  prop- 
erty similar  to  that  which  a  trader  has  in 
his  trade-mark,  and  may,  like  a  trader, 
claim  the  protection  of  a  court  of  equity 
against  sucn  use  ov  imitation  of  the  name, 
marks  or  desi;;  nations,  as  is  likely,  in  the 
opinion  of  the  court,  to  be  a  cause  of  dam- 
age to  him  in  respect  of  his  property.  This 
doctrine,  in  cases  where  the  facts  are  suffi- 
cient to  sustain  it,  has  been  held  applicable 
to  such  periodiosi  publications  as  newspapers, 
magazines  and  almanacs." 

Miir  juri. — When  one  named  Oakes  sold 
the  exclusive  right  to  manufacture  and  sell 
"  Oakes'  candies,"  he  was  restrained  from 
manufacturing  and  selling  candies  made  by 
him  as  "  Oakes*  candies." 

Probasco  v».  Bonyon,  I  Mo.,  App.  llep.  241, 
1876. 

Clark  vs.  Qerman  Mutual  Fire  Insurance 
C>.  (7  Mo.,  App.  77,  1879).  This  is  not  a 
trade-mark  case,  properly  speaking.  It  is 
given,  however,  as  opposed  to  the  case  of 
the  Qalazy  Publishing  Co. ,  where  an  injunc- 
tion was  refused,  because  the  name  was 
misleading'  in  Pennsylvania.  One  trading 
under  the  name  "  National  Slipper  Com- 
pany "  assumes  that  designation  as  his  trade 
name,  and  that  he  insures  in  that  name  is 
not,  in  the  absence  of  deceit,  a  breach  of 
warranty  that  the  interest  of  the  assured  in 
the  policy  shall  be  truly  stated.  The  name 
"  National  Slipper  Company  "  does  not  nec- 
essarily imply  a  corporation,  nor  an  associ- 
ation of  persons ;  it  may  be  the  trade  name 
of  one  man. 

Jfew  York. — Who  May  Acquire  a  Trade- 
Mark. — The  right  to  protection  is  not  exclu- 
sively in  the  manufacturer.  The  person  for 
whom  the  goods  are  manufactured  (Amos- 
keag  Mfg.  Co.  vs.  Spear,  a  Sandf.,  599),  and 
the  vender  who  sells  and  who  may  have  no 
direct  relation  to  the  manufacturer,  has  such 
right.  (Partridge  va.  Menck,  2  Barb.,  ch. 
103;  Taylor  vs.  Carpenter,  a  Sandf.,  ch. 
603) ;  Qodillot  vs.  Haxard  (Spec.  Term)  49 
How.  Pr.,  5  ;  (affirmed  Oeneral  Term)  44  N. 
Y.  Sup.  Court,  427 ;  (affirmed  Court  of  Ap- 
peals) 81  N.  T  ,  263,  1880. 

What  may  Become  a  Trade-Mark. — "  Qre- 
nade  Symp."  It  was  held,  on  a  motion  to 
dissolve  injunction  during  suit,  that  this  was 
a  good  trade-mark  on  syrup  manufactured 
from  the  juice  of  the  pomegranate,  although 
"Qrenade"  was  a  French  word  meaning 
pomegranate,  and  that  Orenade  syrup  was 
sold  in  France  under  that  name. 


Rillet  IS.  Cariier,  11  Abb.  Pr.  (N.  S.)  18A. 
1870.  This  case  was  afterward  tried  an-l 
the  complaint  dismisseil. 

"Established  1780,"  which  haa  been  con- 
■picuouvly  dis|ilaye<l  pnil  used  u|Hin  the 
signs,  labeN,  hill  heatis,  Ac,  of  a  drug  house 
for  a  great  numlwr  of  years,  is  a  trade-nmrk, 
and  will  he  protected  by  a  court  of  e<iuity. 

Hazard  vn.  Caswell,  S7  How.  Pr.  I,  1878. 

The  numerals  2,  101  and  32. 

India  Rubber  Co.  v».  Rubber  Comb  Co  , 
45  N.  Y.  Sup.  Ct.  Rp.  258,  1879. 

An  entire  label  made  up  of  parts  which 
are  common  property.  Qodillot  vs.  Harris, 
9i  N.  Y.  263,  1880. 

"  Royal,"  as  applied  to  flavoring  extracts. 
Royal  Baking  Pciwder  Co.  vs.  SherriU,  59 
How.  Pr.  17,  1880. 

"  National  System  of  Penmanship,"  as 
applied  to  copy  books.  Potter  vs.  McPher- 
son,  21  Hun.,  SS9.  1880. 

"  Pride,"  as  applied  to  cigars.  Heir  vs. 
Abrahams,  82  N.  Y.,  $19,  1880. 

What  Cannot  Become  a  Trade-Mark, — 
"Cherry  Pectoral"  is  not  a  good  trade- 
mark. The  word  *  cherry  '  describes  one  of 
the  ingredients  of  the  compound,  and  the 
word  '  pectoral '  describes  the  use  and  appli- 
nation  of  the  meiUcine."  Ayer  vs.  Rushton, 
Ne  r  York  Common  Pleas  Court  (7  Daly,  9, 

1877). 

"Rye  and  Rook"  form  a  description  of 
the  articles  of  which  the  liquid  to  which  the 
plaintiff  applied  the  words  is  compounded, 
and  therefore  it  is  not  a  trade-mark.  Van 
Beil  vs.  fresoott,  46  N.  Y.  Sup.  Ct.  Rep., 
S42  ;  affirmed,  82  N.  Y.,  630,  1880. 

When  an  Injunction  will  be  Granted  — 
Plaintiff  had  for  some  years  manufactured 
and  vended  an  article  called  "  Gouraud's 
Oriental  Cream."  Defendants,  sons  of 
plaintiff,  but  having  a  different  surname, 
commenced  to  manufacture  and  vend  an 
article  of  like  nature  with  plaintiffs,  which 
they  labeled  "Dr.  T.  F.  Oouraud's  Son's 
CrAme  Orientate."  Defendants  were  in- 
joined.  Qouraud  vs.  Trust,  6  N.  Y.  Su- 
preme Court,  Rp.  133,  1875. 

When  one  partner  retires  from  a  llrm  and 
the  other  members  of  the  firm,  with  the  con- 
sent of  the  retiring  member,  continue  the 
business  uifder  the  old  6rm  name,  they  will 
be  held  to  have  succeeded  to  the  business  of 
the  old  firm.  As  the  right  to  use  the  words 
"Established  1780,"  when  the  partnership 
between  the  plaintiffs  and  the  defendant 
ended,  belonged  to  the  business,  it  passed  to 
the  successors  of  the  firm.  The  retiring 
partner  will  be  enjoined  from  further  use  of 
such  trade-mark,  because  conveying  an 
untruth  injurious  to  the  plaintiffs  and  the 
public.  Hacard  vs.  Caswell,  57  How.  Pr., 
I,  1878;  approved  in  a  subsequent  suit  in 
the  Superior  Court,  46  N.  Y.,  Superior  Ot. 
Rep.,  559. 

Plaintiffs  published  a  series  of  copying 
books  on  the  covers  of  which  was  printed 
"Payson,  Dnnton  &  Scribner's  National 
System  of  Penmanship,"  and  the  bool^  haa 


mm 


■■M 


' 


i 


ill>. 


>>at>n  oallml  and  known  «■  tli«  "  National 
Myit«m  uf  Penmanithip."  The  defnnilantt 
pubnuhed  i\  book  in  iiibitantially  the  Minn 
form  bvarinK  on  the  cover  ;  "  Independent 
National  Hy«tem  of  PeninanBhip."  They 
were  enjoin-Hl  from  \he  iiie  of  the  words, 
"  National  Hyitem  of  Penmanthip."  Patter 
v».  MoPhenon,  ai  Hun.,  559. 

A  person  hat  a  rif^ht  to  use  his  own  name 
aa  a  trade-mark  to  designate  an  article 
which  he  produces  and  sells,  although 
another  person  of  the  same  name  has  previ- 
ously pro<luce<l  and  sold  the  like  article  with 
the  same  designation ,  and  has  made  the  use 
of  the  dnsignation  valuable.  But  while  a 
person  has  a  leiral  riyht  to  change  his  name, 
if,  however,  such  change  and  use  is  made 
for  the  purpose  of  leading  the  public  to  lie- 
lieve  that  the  articles  so  deMignnted  are 
those  of  the  prior  user  of  the  dusignalion, 
and  thus  deprive  such  prior  user  of  his  gains, 
the  court  will  restrain  such  dishodest  use. 
England  v»  The  New  York  Publishing  Co., 
8  Daly,  Com.  PI.,  Rep.,  37s.  1878- 

When  plaintiff's  trademark  "  Pride  "  had 
been  us<»a  by  defendants  on  their  goods,  it 
waa  held  that  it  was  no  defense  that  de- 
fendant's labels  were  different  in  color,  pic- 
ture and  words  from  the  plaintiff's. 

HeirM.  Abrabamn,  83  M.  Y.,  jig,  ifio. 

When  an  Injunction  will  be  Refused. — A 
man's  right  to  the  use  of  hi«  own  name  as  a 
component  part  of  a  trade-mark  can  only  be 
interfered  with  when  it  is  used  fraudulent- 
ly with  intent  to  deceive  the  public,  or  to 
pirate  upon  the  business  of  another.  Helm- 
bold  vs.  Helmbold  Mfg.  Co.,   53  Bow.  Pr., 

453.  1877. 

The  words  "tempest  "and  "hurricane" 
are  not  so  limilar  aa  to  warrant  the  oonclu- 
■ion  that  the  public  ia  liable  to  be  misled 
into  believing  that  lanterns  to  which  these 
words  are  respectively  applied  are  of  the 
same  manufacture.  Hurricane  Patent  Lan- 
tern Co.  vs.  Miller,  56  How.  Pr.,  334. 

TitU. — When  a  man  uses  a  common  Eng- 
lish word  in  connection  with  his  own  name, 
the  latter  simply  identifies  his  goodd  and  it 
ia  the  only  distinctive  feature  of  his  trade- 
mark (e.  g.,  Helmbold's  Buohu).  In  such  a 
caae  the  right  to  use  his  own  name  is  a  per- 
sonal right,  and  does  not  pass  to  assignee  by 
an  adjudication  in  bankruptcy.  Helm- 
bold  vs.   Helmbold  Mfg.  Co.,  •;3  How.  Pr. 

453.  1877- 

One  of  a  firm  of  two  partners  who  pur- 
chases on  its  dissolution  the  asstte  and  good 
will,  is  entitled  to  continue  the  business  un- 
der the  old  firm  name  under  the  Revised 
Statutes  of  the  State,  if  the  firm  has  done 
business  the  period  required  by  the  statute. 
Adams  vs.  Adams,  7  Abbot  N.  S.,  293,  1879. 

The  proprietary  right  which  a  man  has 
acquired  in  a  trade-mark  or  in  the  use  of 
his  name,  or  in  any  name  general  or  other- 
wise which  designates  a  particular  business 
eitablished  by  him,  is  transmisaable  by 
ateignniQnt  or  bequest,  and  will  pass  under 
•  general   assignment   for   the  benefit  of 


,i_. 


oredito.ii,  which,  by  its  terms,  transfers  all 
ihe  insitlvont's  pniperty  for  the  payment  of 
his  (l«l)tii,  although  it  may  not  Iw  sfwcifled  in 
the  schedule  annexe<l  to  the  assignment. 
Hegeman  v».  Hegem%n,  8  Daly,  N.  Y. 
Ci>mmon  Pleas  i,  1880. 

The  parties  to  suit  were  formerly  partners 
in  the  business  of  manufacturing  glass 
chimney*  for  lamps,  and  they  aduntod  the 
word  "  Hilex  "  as  a  trade-mark.  The  Arm 
waa  dissolved  in  June,  1877  ;  the  dnfendants 
sold  to  the  plaintiff  their  interest  in  the  real 
eetate  use*!  fur  the  business  and  in  certain 
s|>ecifled  (xtrsonal  pro|)erty  oonneote<l  with 
it.  Nothing  was  said  at  thi  txn.  ^bout  the 
goixl  will  of  the  business  or  lie  t.  i  le-mark, 
and  there  was  no  reference  to  11  m  the  bill 
of  sale.  Thereafter  the  pUintiff  continued 
the  business  at  the  same  place,  usinit  the 
same  trade-mark.  In  October,  1877,  de- 
fendants commenced  and  thereafter  carried 
on  the  same  business  in  the  same  city,  using 
the  same  trade-mark.  In  an  action  to  re- 
strain such  use,  held,  that  assuming  the 
word  "  Silex "  could  be  used  as  a  trade- 
mark, and  that  the  firm  while  it  existed  had 
the  exclusive  right  so  to  use  it,  such  exclu- 
sive right  was  not  acquired  by  plaintiff,  and 
the  action  was  not  maintainable  ;  that  after 
the  dissolution  either  of  the  late  partners 
could  use  it  until  in  some  way  he  nad  di- 
vested himself  of  that  right ;  that  as  the 
trade-mark  was  not  in  its  nature  local,  it 
did  not  pass  as  incident  to  what  was  sold. 
Huwer  vs.  DannenhoffaY,  83  N.  Y.,  499, 
1880 

Ohio. — The  name  "Domestic,"  applied  to 
bread,  may  become  a  trade-mark  whose  in- 
fringement will    be    enjoined.      Smith  vs. 
Carnan,  5  Cinn.  Law  Bulletin,  145 ;  Super.  , 
Court,  Cinn.,  1880. 

Pennsylvania. — Morse  vs.  Worrell  (loPhU. 
Rep.,  168,  1874).  This  was  a  motion  for  a 
preliminary  or  special  injunction  during 
pendency  of  the  trial.  The  plaintiff  used  aa 
a  trade-mark  the  words.  "  The  Rising  Sun." 
The  defendant  put  up  goods  on  which  he 
affixed  the  words  "Rising  Moon."  The 
court  said  "the  defendant's  label,  in  my 
judgment,  lies  very  cloae  upon  the  border. 
We  will  determine  on  which  side  of  the  line 
it  is  after  the  plaintiffs  shall  have  estab- 
lished their  right  at  law  or  upon  final  hear- 
ing." The  case  came  on  to  be  beard  in 
1875,  and  a  perpetual  injunction  waa  granted 
against  the  defendant.  It  was  also  decreed 
that  all  copies  of  the  counterfeit  trade- 
mark, and  ajl  plates  for  producing  the  same, 
should  be  given  up  to  be  destroyed,  and 
damages  and  costs. 

Wiseonsin. — Leidersdorf  vs.  Flint  (go  Wis., 
401,  1880).  This  waa  in  an  action  to  restrain 
a  defendant  from  using  a  trade- -nark  alleged 
to  have  been  devised  by  him  in  imitation  of 
that  of  plaintiff,  and  to  be,  in  fact,  decep- 
tive to  purchasers,  &c.  Fae  simile*  of  the 
two  trade-marks  were  annexed  to  the  com- 
plaint. It  waa  held  that  on  demurrer  it  will 
not  be  decided ;  that  the  one  is  not  rofllpient- 


.1.. 


t«rmi,  tranifer*  nil 
for  thn  imymeni  <if 
ly  not  he  ■|>ecifle<l  in 
to  th«  aiiiifninient, 
1,    8    Daly,    N.    Y. 

■e  formerly  psrtnem 
iRnufanturinK  f(\Mn 
i<l  th«y  adopted  the 
lie-mark.  The  Ann 
S77 ;  the  dnfendantii 

interext  in  the  real 
lineM  and  in  certain 
srty  oonnecte<l  with 

thi  t'Mv  nbout  the 
■  or  I  If  t.<;  le-raark, 
'enne  to  11  in  the  hill 
a  pUintiil  continued 
me  place,  uainu  the 

October,  1877,  de- 
1  thereafter  carried 
the  lame  city,  mini; 

In  an  action  to  re- 
tbat  auuming  the 
te  used  as  a  trade- 
while  it  existed  had 
■,o  use  it,  such  nxclu- 
red  by  plaintiff,  and 
tainable  ;  that  after 
)f  the  late  partners 
me  way  he  had  di- 
rifCht ;  that  as  the 
i  its  nature  local,  it 
b  to  what  was  sold. 
E«Y,   8a  N.  Y.,  499. 

omestic,"  applied  to 
■ade-mark  whose  in- 
I  joined.  Smith  vs. 
ulletin,  145 ;  Super.  , 

««.  Worrell  (10  Ph«. 
was  a  motion  for  a 

injunction  during 
Ihe  plaintiff  used  as 
"The  Rising  Sun." 
goods  on  which  he 
rising  Moon."  The 
lant's  label,  in  my 
le  upon  the  border, 
hich  side  of  the  line 

shall  have  estab- 
or  upon  final  hear- 
on  to  be  beard  in 
unction  was  granted 
It  was  also  decreed 

counterfeit  trode- 
produoing  the  same, 

be  destroyed,  and 

orf  vs.  Flint  (50  Wis., 
an  action  to  restrain 
a  trade- nark  alleged 
him  in  imitation  of 
>  be,  in  fact,  decep- 
Fac  8imile»  of  the 
annexed  to  the  com- 
t  on  demurrer  it  will 
B  one  is  not  auQpienfc- 


88 


^    ^ 


ly  similar  to  the  oth*r  to  minlwiid  and  to  con- 
•tiliHw  an  inrt'ini»<nii*iit,  iiiilr>s  the  dis- 
siinliritx  ix  so  nmik'  <l  a*  to  li'nve  iki  duulit 
ill  tliH  mind  of  tlie  ciiurt ;  Imt,  the  iiiiextiitn 
of  inrnn^eiiieiit  will  liu  i-t'S  >t-v<tii  until  the 
conii'ii;  ill  of  the  pVoiifii. 

lJnile,l  Hlntfn —FiulenU  CotivlH.  —  Whiit 
mtiii  Urcoiiit  a  Trade  Mark. — The  word 
"  Vaiikt'fl."  npi'lioil  to  A  kotp.  WilliuiiiN  v». 
Ailaiiip,  7  K' pirti-r,  (in 

The  word  "  Fiirati  »Ih,''  npplieil  to  ne<>dl>'i. 
Rolort*  r*  Bhtldun,  18  O.  U.,  1377,  N.  D. 
o(  III.,  i87(). 

WItnt  Cannot  W'roinc  a  Traile- Mark. — A 
BVHtfiii  of  lini'i  marked  or  stanipud  upon 
plii:H  (if  tobacco. 

DniNtnttn  &  Druitimond  T<)bacc<i  Co.  m. 
Riiffn«r,  15  O.  a..  559:  N.  I),  of  III  ,  1878. 

Letters  and  fluurvs  ttiflx'il  to  niHi'chanilise 
b]»a  nianuTanturer,  for  the  purpose  ol  dxiiot- 
ing  its  qaclity  only,  cannot  be  appropriated 
hv  him  to  his  exclusive  use  an  a  trade  murk. 
Munufauturing  Co.  vs.  Trainer,  loi  U.  S. 
Hiip.  Ct.  Rep.  51,  1879.  (See  Auio-keog 
Mfir.  Co.  v».  Srear,  a  Sundf  ,  sqo,  184Q  ) 

When  an  Injunction  will  be  Granted. — 
The  pUintifl'H  Arm  had  li>ngb>>en  anoustonied 
to  oaek  a  compound  called  *'  Hamliuri;  Tea  " 
in  long  cylindrical  packages  with  pirk 
wrappers,  and  to  have  a  crimson  paper  of 
directions,  and  yellow  ones  of  warning,  tied 
in  with  each  package,  and  thuir  Hrm  name 
printed  ncruHS  a  tvhite  l.tbfl  within  a  circle 
pasted  across  the  enils  of  the  strinir,  and  the 
s<<me  embossad  with  the  words  "  Hamburg, 
Hopfenrack,  6,"  on  another  white  label 
pasted  on  the  package,  sn  that  the  package, 
bv  it^  form  and  colors,  would  he  at  once 
known  by  its  gnneral  appearance,  without 
taking  time  to  read  an>thin(r  on  it;  and 
their  wares  had  come  to  be  well  known  as 
theirs  bv  the  appearance  of  the  packages. 
B  openly  used  such  style  of  packaifu  and 
firm  name  to  put  up  Hamburg  tea.  He  then 
discontinued  thn  use  of  the  Arm  name,  and 
of  the  words  "  Hopfenjack6,"  but  continued 
to  use  the  exact  form  and  style  of  packaKC, 
substituting  his  own  name  merely  fir  ihnt 
of  the  firm  on  the  labels  :  Held,  that,  witb 
the  proper  parties  before  the  court,  B  ought 
to  be  restrained  by  injunction  from  such  use 
of  the  symbols  (see  same  case,  motion  for  in- 
junetion,  13  Blatch  ,  334.  1876).  Frere  vs. 
Bachof,  14  Blatch.,  433;  S.  D.  of  New  York, 
1878.- 

A  person  has  no  right  to  mark  his  go  :ds 
with  any  words  or  terms  indicating  that 
tiiey  are  manufactured  under  a  patent  which 
he  does  not  own  and  has  no  right.  Wash- 
burn &  Moen  Mfg.  Co.  vs.  Haish,  18  0.  O., 
465  ;  N.  D.  of  Illinois,  1879. 

The  general  rule  is  to  enjoin  when  the 
imitation  is  so  close  that  by  the  form, 
marks,  contents,  words,  or  their  special  ar- 
rangement, or  by  the  general  appearance  of 
the  infringing  device,  purcbasei-s  exercising 
ordinary  caution  are  likely  to  be  mirled 
into  imying  the  article  bearing  it  for  the 
genuine  one.     It  is  not  necessary,  to  entitle 


a  par^y  to  an  iniiinction,  that  a  particular 
triidi'-inirk  iias  been  Infringed  To  satisfy 
the  court  thnt  the  respondent  intended  to 
rppreitenl  to  the  (lubliu  thiit  his  good4  were 
t.hiisxot  the  ooiii|i|iiiiiaiir,  issiiWoient  Mo- 
L  nil  M.  Klein  ning.  <)'•  U.  S  SioremiC  »urt, 
3)5.  Hnwyer  vs.  Horn,  I  Fuderal  Rtip.; 
M>..  1880. 

When  an  Ininnrtionwill  be  liefuwd.—'E  A 
T.  FiilrliankNi*fcC(>. ,  inaiiufactiirtrs  «f  Kcules, 
iilleced  that  J.  made  si-ales,  by  using,  to 
m>iko  the  iron  castinits  thereof,  the  cirros- 
|Mmdiii|{  parts  of  a  scale  made  by  thrm.  to 
for'U  the  iMolds  for  those  caxtiiigs,  and  tliat 
tliu  ufiieral  iih'ipe  anil  arraniiemeiit,  and 
O'llor  and  external  appoamnceof  Huch  scnles 
were  imitated  from  the  Fuirbanki  scale  110 
ne.'irly  that  only  nn  expert  in  scales  could 
ilisiln^iiish  thn  difference  between  them. 
The  words  "Fairbanks  patent"  were  cast 
on  the  scale*  ninde  by  both  parties.  All  the 
patents  which  Fairbanks  iHi  Co.  have  had 
had  expired.  Fairbanks  &  Co.  applied  for 
an  injunction  to  restrain  J.  fiom  U!iing  the 
words  "Fairbanks  patent"  on  his  scales, 
and  from  makinir  or  sellijig  an  imitation  of 
Fairbanks  &  Co.'s  scale*  1  Held  that  iha 
application  must  be  denied  ;  that  the  words 
"Fairbanks  patent"  were  not  a  trade- 
mirk  ;  and  that  J.  did  not  represent  his 
scale's  to  be  of  the  makii  of  Fa'rbanks  &  Co, 
Fairbanks  vs.  .Tacobus,  14  Blatch.,  337;  S. 
D.  of  N.  Y.,  ifi77. 

Proof  that  the  trade-mark  is  deceptively 
used  by  the  complainant,  and  the  public  is 
defrauded  by  his  sales,  defuats  his  claim  to 
an  injunction.  Manhat  "  •  ''ledicine  Co.  vs. 
Wooii,  14  O.  O.,  siq  ;  Bf  I  ,  ih-8.  Seabiiry  vs. 
GroMveuor,  14  Blatoh.  .  .  ?  ;  S.  D.  of  Netr 
York. 

Q.  having  a  patent  for  an  improvement 
in  ntoves,  acquiesced  during  the  entire  dura- 
tion of  the  patent  in  the  manufacture  and 
sale  by  M.  of  stovns  containing  said  im- 
provement, with  the  name  "Charter  Oak  " 
upon  them.  After  the  patent  expired  M. 
continued  to  make  and  sell  stoves  contain- 
ing said  improvement,  and  to  put  the  name 
"Charter  Oak"  upon  them,  but  did  not 
represent  them  as  made  by  Q.  G.  claimed 
the  name  "  Charter  Uak  "  as  a  trade-mark 
applied  to  stoves  containing  said  improve- 
ment, aiid  brouKht  a  suit  to  restrain  the  u«e 
of  it  by  M.  on  such  stovf  s.  Held  that  M 
ovight  not  to  be  so  restrained.  Fillev  vs. 
Child,  16  Blatch.,  376;  S.  D  of  New  York, 
i8';9. 

An  injunction  will  not  be  granted  to  re- 
strain a  manufacturer  from  using  a  label 
bearinff  no  resemblance  to  the  complain- 
antV,  except  that  certain  letters,  which 
alone  convey  no  meaning,  are  inserted  in 
the  center  of  each,  the  dissimilarity  of  the 
labels  being  such  that  no  one  will  be  misled 
as  to  the  true  orii{ia  or  ownership  of  the 
merchandise.  Manufacturing  Co.  vt.  Trainer, 
loi  ;  U.  S.,  51,  1879. 

ntfe.— There  cannot  be  an  ownership  of 
the  same  trade-mark  at  different  placet  by 


I 


';«j.tTf#a1Wp|iitiifrijMtif|iiiirip!yi^^ 


m'di-r 


!'; 


84 


diff<>rent  peraons.  Liceng^es  nnder  a  pro- 
prietor of  a  trade-mark  may  lose  their  rights 
by  disregnrding  the  territorial  liniits  pre- 
scribed by  the  liemHe  for  their  sales  ;  or  by 
reliiiqiiishini^  the  use  of  the  mark  \u  their 
basint-ss  and  adopting  another  of  tb(  ir  own 
designing.  Manhattan  Medicine  fJo.  vs. 
\*ood,  ".  O  Q.  519;  Me.,  1878. 

A  rignt  to  a  trade-mark  may  be  lost  by 
non-iiser  for  eight  yenrs.  Black  w^!!  vs. 
Dibrell,  3  Hughes,  151 ;  Va.,  1878. 

If  owners  of  tradn-marks  have  been  rea- 
sonably dilifietit  in  pr<'.s>^cuting  infringers, 
abandonment  is  not  to  he  inferred  from  the 
infringements.  Williams  vs.  Adams,  7  Re 
porter,  613;  III.,  1879. 

A  trade-mark  luay  be  owned  by  one  mem- 


ber of  a  firm  by  whom  goods,  on  which  it  is 
used,  are  manufactured.  A  trade-mark 
may  be  sold  with  ihe  est'blishment  when 
the  gcods  known  by  it  are  manufactured. 
Eidd  vs.  Johnson,  100  U.  S.  Suoreme  Court, 
617,  1879- 

The  right  of  the  proprietor  of  a  trade-mark 
to  the  excluKive  UHe  of  the  same,  e  jo  to  pro- 
tect and  enforce  his  exclusive  rieht  by  pro- 
ceedings in  chancery,  exists  by  virtue  of  the 
common  law,  and  independently  of  the 
statute.  The  dedson  of  the  Supreme  Court, 
therefore,  declaring  the  trade-mark  statute 
of  1870  unronstitutinnal,  does  not  affect 
suits  in  the  federal  courts  under  the  common 
law.  U.  S.  vs.  Roche,  i  McCrary,  385  ;  Col., 
1879. 


S-J     i: 


1  if 


ms^ 


[>dei,  on  which  it  it 
A  trade-mark 
b  ■  blishmeiit  when 
.re  mtnufactured. 
I.  Supreme  Court, 

or  of  a  trade-mark 
same,  ejo  to  pro- 
igive  risbt  by  pro- 
IR  by  virtue  of  the 
•endently  of  the 
le  Supreme  Court, 
'ade-mark  statute 
,  does  not  affect 
under  the  common 
sCrary,  385  ;  Col., 


.:,';.t,    i,      !:j    1' M     s 


itsv;  'r-, 


'■j;e' 


■}i/ 


EXTRACTS 


From  Treaties,  Conventions  and  Declarations,  concerning 
..vt  i,        ,     Trade  Marlis  and  Property. 


■..,'f^ 


Mlii- 


The  treaty  with  the  Argentine  Confederation,  concluded 
July  27th,  1863,  containB  the  following: 

"Abtiole  XIII.  The  citizens  of  the  United  States  and 
the  citizens  of  the  Argentine  Confederation,  respectively, 
residing  in  any  of  the  territories  of  the  other  party,  shall 
enjoy  in  their  houses,  persons  and  properties,  the  full  protec- 
tion of  the  Government." 

The  convention  with  Austria,  concluded  November  25*h, 
1871,  contains  the  following :  , 

"  Article  I.  Every  reproduction  of  trade  marks  which, 
in  the  countries  or  territories  of  the  one  of  the  contracting 
parties,  are  affixed  to  certain  merchandise  to  prove  its  origin 
and  quality,  is  forbidden  in  the  countries  or  territories  of  the 
o&er  of  the  contracting  parties,  and  shall  give  to  the  injured 
party  ground  for  such  action  or  proceedings  to  prevent  such 
reproduction,  and  to  recover  damages  for  the  same,  as  may 
be  authorized  by  the  laws  of  the  country  in  which  the  coun- 
terfeit is  proven,  just  as  if  the  plaintiff  were  a  citizen  of  that 
country. 


jn.j.ij'iw4iiwiiBm.a 


miii 


i 

i 
1 

i    i 
I     ! 


^|i 


2 


''  The  exclusive  right  to  nse  a  trademark  for  the  benefit  of 
citizetiB  of  the  United  States  in  the  Austro-Hungarian  Em- 
pire, or  of  the  citizens  of  the  Austro-Hnngarian  Monarchy 
in  the  territory  of  the  United  States,  cannot  exist  for  a  longer 
period  than  that  fixed  by  the  law  of  the  country  or  its  own 
citizens.  If  the  trademark  has  become  public  property  in  the 
country  of  its  origin,  it  shall  be  equally  free  to  all  in  the 
countries  or  territories  of  the  other  of  the  two  contracting 
parties."  4  -rJl  ii??v 

"  AfmcLE  II.  If  the  owners  of  trademarks,  residing  in 
the  cpuntries  or  territories  of  the  one  of  the  contracting  par- 
ties, wish  to  secure  their  rights  in  the  countries  or  territories 
of  the  other  of  the  contracting  parties,  they  must  deposit 
duplicate  copies  of  those  marks  in  the  Patent  Office  at  Wash- 
ington, and  in  the  Chambers  of  Commerce  and  Trade,  in 
Vienna  and  Pesth." 

The  treaty  of  commerce  with  Belgium,  concluded  Decem- 
ber 20th,  1868,  contains  this  article : 

"  The  higher  contracting  parties,  desiring  to  secure  complete 
and  etecient  protection  to  the  manufacturing  industry  of 
their  respective  citizenfi;  agree  that  any  counterfeiting  in  one 
of  the  two  countries  ii  the  trademarks  affixed  in  the  other 
on  merchandise  to  shew  its  origin  and  quality,  shall  be 
strictly  prohibited,  and  shall  give  ground  for  an  action  of 
damages  in  favor  of  the  injured  party,  to  be  prosecuted  in  the 
Courts  of  the  Country  in  which  the  counterfeit  shall  be 
proven." 


^'HS. 


'um»ML^ 


ijtunJK  ttkM  aMum 


t: 


the  benefit  of 
ungarian  Em- 
Lan  Monarchy 
ist  for  a  longer 
itry  or  its  own 
property  in  the 
I  to  all  in  the 
vo  contracting 

lea,  residing  in 
)ntracting  par- 
»  or  territories 
r  mast  deposit 
Office  at  Wash- 
and  Trade,  in 


;lnded  Decem- 

lecnre  complete 
Qg  industry  of 
irfeiting  in  one 
id  in  the  other 
lality,  shall  be 
)r  an  action  of 
-osecoted  in  the 
lerfeit  shall  be 


a 

"The  trademarks  in  which  the  citizens  of  one  of  the  two 
countries  may  wish  to  secure  the  right  of  property  in  the 
ether,  must  be  lodged,  to  wit:  the  marks  of  citizens  of  the 
United  States  at  Brussels,  in  the  office  of  the  Clerk  of  the 
Tribunal  of  Commerce ;  and  the  marks  of  Belgian  citizens 
in  the  Patent  Office  at  Washington.  It  is  understood  that 
if  a  trademark  has  become  public  property  in  the  country 
of  its  origin  it  shall  be  eg_ualJy  free  to  all  in  the  other 
country."  i"  ^Tju*'    ^.   -hh,.      v>s-^^m=-> 


.<i 


The  agreement  with  Brazil  for  the  protection  of  the  marks 
of  manufacture  and  trade,  concluded  Sept.  24th,  1878,  says: 

"The  citizens  or  subjects  of  the  two  High  Contracting 
Parties,  shall  have  in  the  dominions  and  possessions  of  the 
other,  the  same  rights  as  belong  to  native  citizens  or  subjects, 
in  everything  relating  to  property  in  marks  of  manufacture 
and  trade." 

"  It  is  understood  that  any  person  who  desires  to  obtain 
the  aforesaid  protection  must  fulfil  the  formalities  required 
by  the  laws  of  the  respective  countries." 

The  convention  with  France,  concluded  April  16th,  1869, 
says: 

"  Abtiolb  I.  Every  reproduction  in  one  of  the  two  coun- 
tries of  trade  marks  affixed  in  the  other  to  certain  merchan- 
dise to  prove  its  origin  and  quality  is  forbidden,  and  shall 
give  ground  for  an  action  for  damages  in  favor  of  the  injured 
party,  t»  be  prosecuted  in  the  courts  of  the  country  in  which 


m 


t 


Si 


I 


\ 


li^ 


the  coanterfeit  shall  be  proven,  just  as  if  the  plaintiff  were  a 
sabject  or  citizen  of  that  country." 

"The  exclusive  right  to  use  a  trademark  foi  the  benefit 
of  citizens  of  the  United  States  in  France,  or  of  French 
subjects  in  the  territory  ©f  the  United  States,  cannot  exist 
for  a  longer  period  than  that  fixed  by  the  law  of  the  country 
for  its  own  citizens." 

"If  the  trade  mark  has  become  public  property  in  the 
country  of  its  origin,  it  shall  be  equally  free  to  all  in  the 
other  country. 

"  Abtiolb  II.  If  the  owners  of  trade  marks,  residing  in 
either  of  the  two  countries,  wish  to  secure  their  rights  in  the 
other  country,  they  must  deposit  duplicate  copies  of  those 
marks  in  the  Patent  Office  at  Washington,  and  in  the  clerk's 
office  of  the  Tribunal*  of  Commerce  of  the  Seine,  at  Paris." 

The  convention  with  the  German  Empire  concludes  Dec. 
11,  1871,  contains  the  following : 

•'  Article  XVII.  With  regard  to  the  marks  of  labels  of 
goods  or  of  their  packages,  and  also  with  regard  to  patterns 
and  m^rks  of  manufacture  and  trade,  the  citizens  of  Germany 
shall.enjoy  in  the  United  States  of  America,  and  American 
citizens  shall  enjoy  in  Germany,  the  same  protection  as 
native  citizens."  ■/,     ' 

The  declaration  between  Great  Britain  and  the  United 
States,  dated  October  24, 1877,  says :  , .  ,u 

"  The  sal»ject8  or  citizens  of  each  of  the  contracting  par- 


1. 


3S 


I 


1 


plaintiff  were  a 

foi  the  benefit 
,  or  of  French 
ea,  cannot  exist 
I  of  the  country 

property  in  the 
le  to  all  in  the 

trks,  residing  in 
eir  rights  in  the 
copies  of  those 
ad  in  the  clerk's 
3ine,  %i  Paris." 

conclnde<I  Dec. 


urks  of  labels  of 
;ard  to  patterns 
sens  of  Germany 
i,  and  American 
e  protection   as 

and  the  United 
contracting  par- 


ties shall  have,  in  the  doininions  and  pofiaessions  of  the  other, 
the  same  rights  as  belong  to  native  subjects  or  citizens,  or  as 
are  now  granted  .or  may  hereafter  be  granted  to  the  subjects 
and  citizens  of  the  most  favored  nation,  in  everything  relat- 
ing to  property  is  trade-marks  and  trade  labels."         ^ 

"  It  is  understood  that  any  person  who  desires  to  obtain  the 
aforesaid  protection  must  i'ulfil  the  formalities  required  by 
the  laws  of  the  respective  countries."     ,„ 

The  treaty  with  Kussia  concluded  January  27,  1S68, 
says: 

'*  The  high  contracting  parties,  desiring  to  secure  complete 
and  efficient  protection  to  the  manufacturing;  industry  of 
their  respective  citizens  and  subjects*  agree  that  any  coun- 
terfeiting in  one  of  the  two  countries  of  the  trade  marks  af- 
fixed in  the  other  on  merchandise,  to  show  its  origin  and 
quality,  shall  be  strictly  prohibited  and  repressed,  and  shall 
give  ground  for  an  action  of  damages  in  favor  of  the  in- 
jured party,  to  be  prosecuted  in  the  courts  of  the  country  in 
which  the  counteifeit  shall  be  proven." 

"  The  trade  marks  in  which  the  citizens  or  subjects  of  one 
of  the  two  countries  may  wish  to  secure  the  right  of  property 
in  the  other,  must  be  lodged  exclusively,  to  wit,  the  marks  of 
citizens  of  the  United  States  in  the  Department  of  Manu- 
factures and  Inland  Commerce  at  St.  Petersburg,  and  the 
marks  of  Russian  subjects  at  the  Patent  Office  in  Washing- 
ton." 


m^ 


^^<.mVimr<ivimipim'-^0l(:j^j^4i^W^f^'''*'>^-' 


iiiU^ 


iii 


6 


Trade  Mark  Laws  of  Countries  with  which 
Treaties,  &c.  have  been  made. 


^tr> 


^i* 


i!;,i  I'iC'  0''  ^;^*'i'  1-, 


FRANCE.      •         ';;•''..    '.." 


i^i.'ji-t 


LAW  OF  JUKE  23,  1857,  ON  TRADE  MARKS,  ^i 
Title  I.    Right  of  Property  ir  Marks.         .^ 


Article  I.  The  mark  of  manufacture  or  of  commerce  is 
optional.  However,  decrees  rendered  in  the  form  of  roles 
of  public  administration  may  always  make  it,  in  particalar 
cases,  obligatory  for  tbe  products  which  they  specify.  Are 
considered  as  marks  of  manufacture  and  of  commerce ;  names 
under  a  distinctive  form, ''  titles,"  emblems,  imprints,  stamps, 
seals,  yignettefi,  reliefs,  letters,  numerals,  wrappers  and  every 
other  sign  serving  to  distinguish  the  products  of  a  manufactory 
or  the  objects  of  trade. 

Abtiolb  it.  No  one  can  claim  exclusive  ownership  in  a 
trade  mark  unless  he  has  deposited  two  copies  of  the  trade 
mark  at  the  Registry  of  the  Tribunal  of  Commerce  of  his 
domicile. 

AsTioLB  III.    The  deposit  has  effect  for  only  fifteen  years. 
The  ownership  of  the  mark  can  always  be  preserved  for  a 
new  term  of  fifteen  years  by  means  of  a  new  deposit. 

AimoLE  IV.    (Fees.) 


ith  which 
ide. 

/'    "'>.      '    .  ' ' 

MARKS.    ^ 

commerce  is 
form  of  rnles 
in  particalar 
ipecify.  Are 
lerce;  names 
rints,  stamps, 
in  and  every 
mannfaotory 

^nership  in  a 
of  the  trade 
imerce  of  his 

fifteen  years, 
eserved  for  a 
)po8it. 


I'it/e  II.     Foreigners. 
Article  V.     Foreigners  wlio  possess  in  France  establish- 
ments of  industry  or  or  commerce  enjoy,  for  the  products  of 
their  establishments,  tlie  benefit  of  the  present  law,  on  ful- 
filling the  fonnalities  that  it  prescribes.  '*"        ■     ■"  ' 

Abtiolb  VI.  Foreigners  and  French  citizens  whose  estab- 
lishments are  situated  outside  of  France  have  also  the  benefit 
of  this  law  for  the  product  of  their  establishments,  if,  in  the 
conntries  ^here  they  are  situated,  treaties  have  established 
reciprocity  for  French  marks.  In  this  case  the  deposit  of 
foreign  marks  is  made  at  the  Registry  of  the  Tribunal  of 
Oonmierce  of  the  department  of  the  Seine.        l"^  .■.  *";i i ,c i^ 

,,     Title  III.    Penaltiea. 

Abtiole  VII.  Are  pnnished  by  a  fine,  of  from  fifty  francs 
to  three  thousand  francs,  and  by  an  imprisonment  of  from 
three  months  to  three  years,  or  by  one  of  these  punishments : 

Ist.  Those  who  have  counterfeited  a  mark,  or  used  a 
counterfeit  mark. 

2nd.  Those  who  have  fraudulently  placed  on  their  pro- 
doots,  or  the  objects  of  their  commerce,  a  mark  belonging  to 
another. 

3rd.  Those  who  have  knowingly  sold,  or  placed  on  sale, 
one  or  more  products  invested  with  a  counterfeit  mark  or  one 
fraudulently  affixed. 

Abtiolb  VIII.  Are  punished  by  a  fine,  of  from  fifty  francs 
to  two  thousand  francs,  and  by  an  imprisonment,  of  from 
one  month  to  one  year,  or  by  one  of  these  penalties : 


! 


J!  ' 


Ist.  ThoBe  who,  without  counterfeiting  a  mark,  liave  :nade 
a  fraudulent  imitation  of  it  proper  to  deceive  the  hujer,  or 
have  made  use  of  a  mark  fraudulently  imitated.  < , 

2nd.  Those  who  have  made  use  of  a  mark,  bearing  indi- 
cations of  the  kind  to  deceive  the  purchasd^  as  to  the  nature 
of  the  product. 

drd.  Those  who  have  knowingly  sold,  or  placed  on  sale, 
one  or  more  products  invested  with  a  mark  fraudulently  imi- 
tated, or  bearing  indications  of  a  kind  to  deceive  the  buyer 
as  to  ihe  nature  of  the  product. 

Abtiolk  IX.  Are  punished  by  a  fine,  of  from  fifty  francs 
to  one  thousand  francs,  and  by  an  imprisonment  of  from  fif- 
teen days  to  six  months,  or  by  one  of  these  penalties : 

Ist.  Those  who  have  not  fixed  U;)on  their  products  a  mark 
declared  obligatory. 

2nd.  Those  who  have  sold,  or  placed  on  sale,  one  or  more 
products,  not  bearing  the  mark  declared  obligatory  for  that 
kind  of  products. 

3rd.  Those  who  have  contravened  the  provisions  of  the 
decrees  rendered  in  execution  of  article  first  of  the  present 
law. 

Abtiole  X.  The  penalties  established  by  the  present  law 
cannot  be  cumulated. 

The  greatest  penalty  is  alone  pronounced  for  all  the  acts 
anterior  to  the  first  process. 

Abtiolb  XI.  (Penalties  may  be  doubled  in  case  of  repe- 
tition of  offense.) 


iJMUaianarta 


k,have:nade 
he  bujer,  or 

iKiaring  indi- 

0  the  nature 

Aced  on  sale, 
iulently  imi- 
jQ  the  bayer 

1  fifty  franca 
of  from  fif- 

Ities : 

luots  a  mark 

one  or  more 
tory  for  that 

isions  of  the 
'  the  present 

present  law 
all  the  acts 

tase  of  repe- 


0 


Abtiole  XII.  Article  -163  of  the  Penal  Code  may  be 
applied  to  niiademeanorH  under  the  present  law.  ..^ ..., . 

Aktiole  XIII.  (OifenderB  may  he  deprived  of  their  rights 
to  participate  in  certain  elections,  for  a  term  of  less  than  ten 
years.)  ♦ 

The  court  may  order  tlie  pouting  uf  the  judgment  in  places 
that  it  determines,  and  its  insertion  in  full  or  by  extracts  in 
the  newspapers  that  it  designates ;  the  whole  at  the  expense 
of  the  condemned.  /  r^  ,  >  i>i^  «|^v 

AimoLE  XIV.  The  confiscation  of  the  products,  the  mark 
of  which  shall  be  found  to  be  contrary  to  the  provisions  of 
articles  7  and  8,  even  in  case  of  acquittal,  can  be  ordered  by 
the  court,  as  well  as  the  instruments  and  utensils  which  spe- 
cially served  for  the  commission  of  the  wrong.  The  court 
may  order  that  the  confiscated  products  be  delivered  to  the 
proprietor  of  the  mark  counterfeited  or  fraudulently  aflSxed, 
or  imitated,  independently  of  ampler  damages,  if  there  be 
occasion  therefor.  It  prescribes,  in  every  case,  the  destruc- 
tion of  the  mark  found  to  be  contrary  to  the  provisions  of 
articles  7*  and  8. 

Abtiole  XV.  (Imposition  of  obligatory  marks  must  always 
be  decreed.  The  court  may  decree  the  confiscation  of  the 
products  in  case  of  condemnation  for  same  ofiense  within 
five  years.) 

TiMe  IV.    Jnritidiction. 

Abtiolr  XYI.  Civil  actions  relative  to  marks  are  brought 
before  the  civil  tribunals  and  J  v  Iged  as  summary  matters. 


M 


run 


f 


» 


i 


_..i 


^!  i' 

H,    I, 

j  Ij, 


I 


1     1 

III 


10 


lu  case  of  an  actiuii  brought  urimiiially,  if  tho  defendant 
raises  for  his  defense  questions  relative  to  the  ownersLip  of 
the  mark,  the  tribunal  of  PoUae  CorreotiondU  paf.ses  judg- 
ment on  the  question.  V      rtf?    ,,..,»/ 

Abtiolbs  XV II  and  XV III.  (Regulate  proceedings  before 
the  courts.) 


m-f'>'y'*'i 


>.»■!     '*■ 


vii'  '■'^l  ' 


'  A--  :  \-:  • 


,■'»■ 


Title  V.     General  Proviaione. 


tmf»^'-,l.t.tili;1? 


AsnoLB  XIX.  (Provides  that  all  foreign  prodnds  bearing 
the  mark  or  name  of  a  manufacturer  resident  in  France,  or 
the  name,  or  the  place  of  a  French  factory,  shall  be  excluded 
from  France,  or  seized.)  ^  ^      ,      . 

Abtiolb  XX.  All  the  regulations  of  this  law  are  appli- 
cable to  wines,  eau-de-vie,  and  other  drinks,  to  animals, 
grains,  flour,  and  generally  to  all  agricultural  products.  '^  'S-^^ 

Abtioles  XXI,  XXII,  and  XXIII.  (Provide  for  deposit 
of  trademarks ;  that  law  shall  take  effect  in  six  months ;  for 
rules  of  deposit  and  publication ;  and  that  this  law  shall  not 
affect  previous  deposits.) 


ill 


It 


u  defendant 
iwnenliip  of 
paF.aes  jndg- 


OREAT  BRITAIN. 


i.:,-n,  / 


dingB  before 


.cfcb«rinK 
I  France,  or 
be  excluded 

w  are  appli- 
to  animals, 
)dact8.    t«'»i 

i  for  deposit 
nonths;  for 
iw  shall  not 

Z  >^ 


THE  ENGLISH  TRADE  MARKS  REGISTRATION  ^ 
.   '      .....  „  ACT,  1875.  .    „...>  ,;-. 

'     ''  88&89  Vict.  0.91. 

An  Act  to  eatcMish  a  Reginter  of  Trade  Markt. 

it    ,     !.n  !  )i  mJ   V        y,  .  [13<A -4wm«<,  1876.] 

Be  it  ( nacted  by  the  Queen's  most  excellent  Majesty,  by 
and  with  the  advice  and  consent  of  the  Lords  spiritual  and 
temporal,  and  Commons,  in  this  present  Parliament  as- 
sembled, and  by  the  authority  of  the  same,  as  follows :  ^ 

1.  A  register  of  trade  marks  as  defined  by  this  Act,  and 
of  the  proprietors  thereof  shall  be  established  under  the  su- 
perintendence of  the  Gommiesioners  of  Patents,  and  from  and 
after  the  first  day  of  July,  one  thousand  eight  hundred  and 
seventy-six,  a  person  shall  not  be  entitled  to  institute  any 
proceeding  to  prevent  the  infringement  of  any  trade  mark 
as  defined  by  this  Act  until  and  unless  such  trade  mark  is 
registered  in  pursuance  of  this  Act. 

2.  A  trade  mark  must  be  registered  as  belonging  to  par- 
ticular goods,  or  classes  of  goods ;  and  when  registered  shall 
be  assigned  and  transmitted  only  in  connection  with  the 
good  will  of  the  business  concerned  in  such  particular  goods, 
or  classes  of  goods,  and  shall  be  determinable  with  such  good 
will,  but  subject  as  aforesaid,  registration  of  8  trade  mark 
shall  be  deemed  to  be  equivalent  to  public  use  of  such  mark. 


I 


I 


12 


a.  The  regiHtratioii  ut'  a  pereoii  uh  tint  pruprietor  of  a  trade 
mark  shall  ho  prima  facie  evidence  of  hiu  right  to  the  exolu- 
aive  use  of  such  trade  mark,  and  shall,  after  the  expiration  of 
live  years  from  the  date  of  stioh  registration,  be  conclusive 
evidoiicu  of  Imh  right  to  the  oxoliisivo  use  of  snch  trade  mark, 
subject  to  the  provisions  (»f  this  Act  as  to  its  connection  with 
the  good  vrill  of  a  bnsincHs.  -    'm;    ■.  > 

4.  Every  proprietor  registered  in  respect  to  a  trade  mark 
subsequently  to  the  first  registered  proprietor  shall,  as  re- 
spects his  title  to  that  trade  mark,  stand  in  the  same  position 
as  if  his  title  were  a  continuation  of  the  title  of  the  first  re- 
gistered  proprietor.         ^,,,  ^^  ^,^^  ^^^  ^^^  ^^,.^^^ 

5.  K  the  name  of  any  person  who  is  not  for  the  time  being 
.entitled  to  the  exclusive  use  of  a  trade  mark  in  aoco**danoe 

with  this  Act,  or  otherwise  in  accordance  with  laW,  is  entered 
on  the  register  of  trade  marks  as  a  proprietor  of  snch  trade 
mark,  or  if  the  registrar  refiiseB  to  enter  on  the  register  as 
proprietor  of  a  trade  mark  the  name  of  any  person  who  is  for 
the  time  being  entitled  to  the  exclusive  use  of  such  trade 
mark  in  accordance  with  this  Act,  or  otherwise  in  accordance 
with  law,  or  if  any  mark  is  registered  as  a  trade  mark  which 
is  not  authorized  to  be  so  registered  under  this  Act,  any  per- 
son aggrieved  may  apply  in  the  prescribed  manner  for  an 
order  of  the  Court  that  the  register  may  be  rectified ;  and 
the  Court  may  either  reAise  such  application,  or  it  may,  if 
satisfied  of  the  justice  of  the  case,  make  an  order  for  the  rec. 
tification  of  the  register,  and  may  award  damages  to  the 
party  aggrieved.  '         '  '  ' ""   '"    ''  '"''"" 


lor  of  a  trade 
to  the  exolu- 
expiration  of 
be  conclusive 
I  trade  mark, 
tnection  with 

a  trade  mark 

Bhall,  as  re- 

lamo  position 

'  the  first  re- 

le  time  being 
a  acuo<'danoe 
iW,  is  entered 
)f  snch  trade 
he  register  as 
on  who  is  for 
>f  such  trade 
n  accordance 
I  mark  which 
A.ct,  any  per- 
mner  for  an 
9cti6ed;  and 
or  it  may,  if 
r  for  the  rec. 
nages  to  the 


-     I'"    >' 


13 


Where  each  of  several  persons  claims  to  be  registered  as 
proprietor  of  the  same  trade  mark,  the  registrar  may  refuse 
to  comply  with  the  claims  of  any  of  such  persons  until  their 
rights  have  been  dv>termined  by  the  Court,  and  the  registrar 
may  himself  submit  or  ref|uire  the  claimants  to  submit  in  the 
prescribed  manner  their  rights  to  the  Court. 

The  Court  may,  in  any  proceeding  under  this  section,  de- 
cide any  question  as  to  whether  a  mark  is  or  is  not  such  a 
trade  mark  as  is  authorized  to  be  registered  under  this  Act, 
also  any  question  relating  to  the  right  of  any  person  who  is 
party  to  such  proceeding  to  have  his  name  entered  on  the 
register  of  trade  marks,  or  to  have  the  name  of  some  other 
person  removed  from  such  register,  also  any  other  question 
that  it  may  be  necessary  or  expedient  to  decide  for  the  recti- 
fication of  the  register.  ,  v  .,«k  ,  ••  **  »  s  ^  :/  ■ 
,  The  Court  may  direct  an  issue  to  be  tried  for  the  decision 
of  any  question  of  fact  which  may  require  to  be  decided  for 
the  purposes  of  this  section. 

Whenever  any  order  has  been  made  rectifying  the  raster, 
the  Court  shall  by  its  order  direct  that  due  notice  of  such 
rectification  be  given  to  the  registrar. 

6.  The  r^istrar  shall  not,  without  the  special  leave  of  the 
Court,  to  be  given  in  the  prescribed  manner,  register  in  re- 
spect of  the  same  goods  or  classes  of  goods  a  trade  mark 
identical  with  one  which  is  already  registered  with  respect  to 
BtToh  goods  or  classes  of  goods,  and  the  registrar  shall  not 
r^^ter  with  respect  to  the  same  goods  or  classes  of  goods  a 
trade  mark  so  nearly  rf^sembling  a  trade  mark  already  on  the 


I 


^«  ■  ^i»aaiaiWfS!^>MjtSiiia.ir fiii  t&f^'i 


iiitM4iiS^Mlit)i'  IMfiiliiii'iliTr  "  'lilu'n  -;.i|t^ 


li 


i   m 


n\i- 


t  I 


M  'i 


M 


roister  with  respect  to  such  goods  or  classes  of  goods  as  to 
be  calculated  to  deceive. 

It  shall  not  be  lawftil  to  register  as  part  of  or  in  combina- 
tion with  a  trade  mark  any  words  the  exclusive  use  of  which 
would  not,  by  reason  of  their  being  calculated  to  deceive  or 
otherwise,  be  deemed  entitled  to  protection  in  a  Court  of 
Equity,  or  any  scandalous  designs.  .*^  t^iM  i  -^ff 

*  7.  Su>>ioct  as  aforesaid,  a  register  office  shall  be  established 
from  and  after  such  time  (not  being  later  than  the  first  day 
of  January,  one  thousand  eight  hundred  and  seventy-six),  in 
such  manner  and  with  such  officers,  and  at  such  salari  "s,  to 
be  paid  out  of  moneys  provided  by  Parliament,  as  the  Lord 
Chancellor  may,  with  the  consent  of  the  Treasury,  direct ; 
and  the  Lord  Chancellor  may  from  time  to  time,  with  the 
assent  of  the  Treasury  as  to  fees,  make,  and,  when  made, 
alter,  annul,  or  vary,  such  general  rules  as  to  the  registry  of 
trade  marks,  and  as  to  notices  to  be  given  by  advertisement 
before  the  r^stration  of  trade  marks,  and  as  to  the  classifi- 
cation of  goods  for  the  purposes'  of  this  Act,  and  as  to  the 
registration  of  first  and  subsequent  proprietors  of  trade  marks, 
and  as  to  the  fees  to  be  charged  for  registration,  and  also  for 
the  continuance  of  a  trade  mark  on  the  roister  or  otherwise, 
Bnd  as  to  the  removal  from  the  register  of  any  trade  mark,  as 
to  notices,  and  as  to  the  persons  entitled  to  inspect  the  rois- 
ter, and  as  to  any  proceedings  to  be  taken  to  obtain  the  judg- 
ment or  leave  of  the  Court  in  any  manner  in  which  the  judg- 
ment or  leave  of  the  Court  is  required  to  be  obtained  under 
this  Act,  and  generally  for  the  purpose  of  carrying  into  effect 
this  Act,  as  he  may  deem  expedient. 


i9i 


i  of  goods  as  to 

or  in  combina- 
ve  use  of  which 
)d  to  deceive  or 

in  a  Court  of 


*^    f^  gfiUi  I 


.av 


11  be  established 
Etn  the  first  day 
seventy-six),  in 
mch  salari  "s,  to 
)nt,  as  the  Lord 
reasury,  direct; 
time,  with  the 
id,  when  made, 
►  the  registry  of 
f  advertisement 
IS  to  the  classifi- 
t,  and  as  to  the 
of  trade  marks, 
on,  and  also  for 
;er  or  otherwise, 
Y  trade  mark,  as 
ispect  the  r^is- 
Dbtain  the  judg- 
which  the  judg- 
obtained  under 
rying  into  effect 


15 


Any  rules  made  in  pursuance  of  this  section  shall  be  laid 
before  both  Houses  of  Parliament  if  Parliament  be  then  sit- 
ting, or  if  not  then  sitting,  then  within  ten  days  from  the 
then  next  assembling  of  Parliament,  and  shall  be  of  the  same 
validity  as  if  they  had  been  enacted  by  Parliament ;  provided 
that  if  either  House  of  Parliament  resolve,  within  one  month 
after  such  rules  have  been  laid  before  such  House,  that  any 
of  such  rules  ought  not  to  continue  in  force,  any  rule  in  re- 
spect of  which  such  resolution  has  been  passed  shall,  after 
the  date  of  such  resolution,  cease  to  be  of  any  force,  without 
prejudice,  nevertheless,  to  the  making  of  any  other  rule  in  its 
place,  or  to  anything  done  in  pursuance  of  any  such  rules 
before  the  date  of  such  resolution. 

8.  The  certificate  of  the  registrar  as  to  any  entry,  matter- 
or  thing  which  he  is  authorized  by  this  Act,  or  any  general 
rules  made  thereunder,  to  make  or  do,  shall  be  evidence  of 
such  entry  having  been  made,  and  of  the  contents  thereof, 
and  of  such  matters  and  things  having  been  done  or  left 
undone. 

9.  (Provisions  as  to  Cutlers'  Company  and  Sheffield  corpo- 
rate marks.)  ha^l 

10.  For  the  purposes  of  this  Act :  •    ■ ' 

A  trade  mark  consists  of  one  or  more  of  the  following 

essential  particulars ;  that  is  to  say, 
A  name  of  an  individual  or  firm  printed,  impressed,  or 

woven  in  some  particular  and  distinctive  manner ;  or 
A  written  signature  or  copy  of  a  written  signature  of 

an  individual  or  firm ;  or 


'A 


M«i 


iii^.^ 


16 


Ml! 


:,  ,1  A  diBtinctive  device,  mark,  heading,  label,  or  ticket ; 
and  there  may  be  added  to  any  one  or  more  of  the  sr.id  par- 
ticulars any  letters,  words,  or  figures,  or  combination  of  let- 
ters, words,  or  figures ;  also 

Any  special  and  distinctive  word  or  words,  or  combination 
of  figures  or  letters  used  as  a  trade  mark  before  the  passing 
of  this  Act,  may  be  registered  as  such  under  this  Act. 
"  Prescribed  "  means  prescribed  by  general  rules  made  in 

pursuance  of  this  Act ;  Kud 
*"  Court "  means  any  of  her  Majesty's  superior  courts  of 
law  or  equity  at  Westminster,  or  any  court  to  which  the 
.jurisdiction  of  such  court»  may  be  transferred,  or  any 
one  or  more  of  such  courts  which  may  be  declared  to  be 
the  court  for  the  purposes  of  this  Act  by  such  general 
rules  as  aforesaid ;  but  the  provisions  of  this  Act  confer- 
ing  a  special  jurisdiction  on  the  court  as  (^.bove  defined 
ihall  not,  excepting  so  far  as  such  jurisdiction  extends, 
affect  the  jurisdiction  of  any  court  in  Scotland  or  Ireland 
in  causes,  tuitions,  suits,  or  proceedings  relating  to  trade 
marks ;  and  if  the  register  requires  to  be  rectified  in  con- 
sequence of  any  proceedings  in  any  such  court  in  Scot- 
land or  Ireland,  due  notice  of  such  requirements  shall 
be  given  to  the  registrar,  and  he  shall  rectify  the  regis- 
ter accordingly. 

An  Aot  f(xr  the  Amendment  of  the  Trade  JUarks   Begie- 
traUon  Aot,  1875.  [24<A  Jul/y,  1876.] 


17 


hel,  or  ticket ; 
r  the  sp.id  par- 
>inntion  of  let- 

>r  combination 
•e  the  passing 
lis  Act.      ..,.• 
rules  made  in 

irior  courts  of 
t  to  which  the 
ferred,  or  any 
ieclared  to  be 
'  such  general 
lis  Act  confer- 
E^bove  defined 
:tion  extends, 
ind  or  Ireland 
iting  to  trade 
ictified  in  con- 
iourt  in  Scot- 
irements  shall 
tify  the  regis- 


farks  Regis- 
vly,  1876.] 


■  *.' 


1.  There  shall  be  repealed  so  much  of  section  one  of  the 
principal  Act  as  provides  that  from  and  after  the  first  day  of 
July,  one  thousand  eight  hundred  and  seventy-six,  a  person 
shall  not  be  entitled  fo  institute  any  proceeding  to  prevent 
the  infringement  of  any  trade  mark  as  defined  by  that  Act 
until  and  unless  such  trade  mark  is  registered  in  pursuance 
of  that  Act,  and  in  place  thereof  be  it  enacted  that — 

From  and  after  the  first  day  of  July,  one  thousand  eight 
hundred  and  seventy-seven,  a  person  shall  not  be  entitled  to 
institute  any  proceeding  to  prevent  or  to  recover  damages 
for  the  infringement  of  any  trade  mark  as  defined  by  the 
principal  Act  until  and  unless  such  trade  mark  is  registered 
in  pursuance  of  that  Act,  or  until  and  unless,  with  respect  to 
any  device,  mark,  name,  combination  of  words,  or  other 
matter  or  thing  in  use  as  a  trade  mark  before  the  passing  of 
the  principal  Act,  registration  thereof  as  a  trade  mark  under 
the  principal  Act  shall  have  been  refused  as  hereinafter  is 
mentioned. 

2.  When  an  application  by  any  person  fo  register  as  a 
trade  mark  a  device,  mark,  name,  word,  combination  of 
words,  or  other  matter  or  thing  proposed  for  registration  as  a 
trade  mark,  which  has  been  in  use  as  a  trade  mark  before  the 
passing  of  the  recited  Act,  has  been  refused,  it  shall  be  the 
duty  of  the  r^^trar,  on  request,  and  on  payment  of  the 
prescribed  fee,  to  give  to  the  applicant  a-  certificate  of  such 
refusal,  and  a  certificate  so  granted  shall  be  conclusive 
evidence  of  such  refusal. 


r  fiJIi^ 


18    • 


aERMAN    EMPIRE. 


r,(f  ,'. 


f  -s 


Trade  Mark  Law  of  the  SOth  November,  1874. 


^■:n  * 


We,  William,  by  the  Grace  of  God,  German  Emperor, 
King  of  Prussia,  &e.,  decree,  in  the  name  of  the  German 
Empire,  and  pursuant  to  resolutions  passed  bj  the  Bundes- 
rath  and  the  Reichstag,  as  follows : 

Sec.  1.  Tradesmen  whose  firms  have  been  entered  in  the 
Handelsregister,  may  announce  to  the  competent  authorities, 
for  registration  in  the  Handelsregister  of  the  place  in  which 
'  such  firms  have  their  principal  depot,  any  marks  intended  to 
be  placed  either  on  goods,  or  on  the  packages  in  which  they 
are  contained,  for  the  purpose  of  distinguishing  such  goods 

from  those  of  other  traders. 

• 

Sec.  2.  The  announcement  must  be  accompanied  by  an 
accurate  fac-simile  of  the  trade  mark,  (Sec.  1)  together  with 
a  specification  of  the  description  of  goods  to  which  it  is^  in- 
tended to  be  applied,  and  it  must  also  bear  the.signature  of 
the  firm. 

Sbo.  3.  The  registration  of  those  marks  which  are  pro- 
tected by  law,  and  of  those  which  have  been  in  general  and 
current  use  as  marks  of  the  goods  of  a  certain  trader  up  to 
the  beginning  of  the  year  1875,  cannot  be  refused.  Registra- 
tion, however,  is  to  be  refused  to  such  marks  as  consist  exclu- 


874. 


Emperor, 
le  German 
le  Bundes- 

>red  in  the 
authorities, 
ee  in  which 
intended  to 
which  they 
such  goods 

nied  by  an 
igether  with 
ich  it  is  in- 
signature  of 

eh  are  pro- 
general  and 
trader  up  to 
I.  Registra- 
ionsist  exclu- 


19 

sively  of  figures,  letters,  or  words,  or  which  contain  a  public 
escutcheon  or  any  device  tending  to  cause  scandal  or  offence. 

Sec.  4.  The  registration  takes  place  under  the  name  of  the 
firm  making  the  announcement.  The  date  of  the  announce- 
ment must  also  be  noted.  In  the  event  of  a  trade  mark 
being  sent  more  than  once  for  registration,  owing  to  a  change 
in  the  domicile  of  the  firm,  the  date  of  the  first  announce- 
ment must  be  given. 

Seo.  5.  On  application  of  the  head  of  the  firm,  a  trade  mark 
already  registered  may  be  cancelled.  The  registration  may 
be  officially  cancelled  under  the  following  circumstances: 
(1)  If  the  name  of  the  firm  has  been  struck  out  of  the  Han- 
delsregister ;  (2)  If  the  name  has  been  changed  and  no  an- 
nouncement of  the  retention  of  the  mark  been  made  at  the 
same  time ;  (3)  If  ten  years  are  allowed  to  elapse  from  the 
date  of  registration  without  an  announcement  that  the  mark 
is  intended  to  be  retained  ;  or  should  the  same  space  of  time 
elapse  without  a  renewal  of  such  annomicement  being  made ; 
(4)  If  the  trade  mark  according  to  Sec.  3.  was  not  legally 
entitled  to  registration. 

Seo.  6.  The  first  registration  and  the  cancelling  of  a  trade 
mark  will  be  published  in  the  columns  of  the  ''  Deutscher 
Reiches-Anzeiger."  The  costs  of  such  publication  to  be 
borne  by  the  firm. 

.  Seo.  7.  For  the  first  registration  of  a  trade  mark  which  has 
lift  already  received  the  protection  of  the  law  a  fee  of  fifty 
marks  shall  be  paid.  The  payment  for  the  registration  of  a 
trade  mark  which  has  been  in  general  and  current  use  as  the 


iHa 


Il-  .1 


20 


trade  mark  of  a  certain  firm  up  to  the  beginning  of  the  year 
1875,  may  be  remitted  by  the  local  authorities.  Other  regis- 
trations and  cancelliugs  arc  done  gratuitously. 

Seo.  8.  The  right  to  make  use  of  a  particular  trade  mark 
on  goods,  or  Articles  in  which  goods  are  packed,  belongs 
exclusively  and  solely  to  the  Krm  tor  which  the  registration 
was  in  the  first  instance  effected. 

Seo.  9.  To  trade  marks  which  are  protected  by  law,  or 
which  haye  been  in  general  and  current  use  as  the  marks 
of  certain  firms  up  to  the  beginning  of  the  year  1875,  no  one 
can  acquire  a  right  so  long  as  the  firms  whose  said  trade 
marks  are  legally  protected,  or  which  have  been  in  general 
and  current  use,  make  their  announcement  before  the  first  of 
October,  1875. 

Sec.  10.  By  adopting  a  trade  mark  which  contains  letters 
or  words,  no  one  will  be  prevented  from  making  use  of  his 
name  or  the  name  of  his  firm — either  abbreviated  or  in  full — 
as  a  means  of  distinguishing  his  goods.  No  one  can  obtain 
a  right  by  annoimcement  to  any  trade  mark  which  up  to  the 
present  time  has  been  in  free  use  among  all  or  certain  classes 
of  business  people,  or  whose  registration  is  not  permissible. 

Sec.  11.  The  head  of  a  firm  for  which  a  trade  mark  has 
already  been  registered  must  cause  the  same  to  be  cancelled 
upon  the  demand  of  a  person  who  is  justified  in  precluding 
him  from  the  use  of  itj  or  in  the  cases  provided  for  in  Sec.  10. 

Sbo.  12.  The  right  of  using  a  trade  mark  of  which  due  no- 
tification has  been  made  expires ;  (1)  by  the  withdrawal  of 
the  notification,  or  on.  an  application  to  cancel  the  trpde 


21 


of  the  year 
Other  regis- 

•  trade  mark 
ked,  belongs 
B  registration 

d  by  law,  or 
as  the  marks 

•  1875,  no  one 
se  said  trade 
sen  in  general 
are  the  first  of 

iontains  letters 
ing  use  of  his 
,ed  or  in  full — • 
one  can  obtain 
?hich  up  to  the 
certain  classes 
t  permissible, 
trade  mark  has 
to  be  cancelled 
I  in  precluding 
i  for  in  Sec.  10. 
f  which  due  no- 
B  withdrawal  of 
ancel  the  trfwie 


mark  on  the  part  of  the  authorized  firm :  or  (2)  by  the  coming 
into  operation  of  either  of  the  firet  three  cases  mentioned  in 
Sec.  5. 

Skc.  13.  Every  native  producer  or  trader  who  has  received 
protection  or  authorization  for  his  trade  mark  may,  in  the 
event  of  another  unlawfully  making  use  of  the  same  or  the 
name  of  his  firm,  in  virtue  of  this  law  enter  an  action  against 
any  person  so  doing,  in  order  to  obtain  a  legal  decision  that 
he  is  not  entitled  to  make  use  of  such  trade  mark.  The  pro- 
ducer or  trader  may  likewise  prosecute  any  person  who 
unlawfolly  exposes  or  keeps  for  sale  any  goods  unlawfully 
marked  with  the  complainant's  trade  mark,  that  the  person 
so  doiug  may  be  judicially  declared  unauthorized  to  expose 
or  keep  for  sale  any  goods  so  marked. 

Sko.  14.  Whosoever  knowingly  and  unlawfully  exposes  or 
keeps  for  sale  any  goods,  or  the  packages  thereof,  bearing 
the  trade  mark  or  name  of  the  firm  of  a  native  producer  or 
trader  who  has  received  the  protection  of  this  law,  shall  be 
liable  to  a  fine  of  not  less  than  one  hundred  and  fifty  marks, 
and  not  more  than  three  thousand  marks,  or  to  imprisonment 
for  any  period  not  exceeding  six  months,  and  he  shall  also  be 
•  bound  to  pay  an  indemnity  to  the  said  producer  or  trader. 
The  punishment  is  only  to  be  enforced  upon  the  demand  of 
the  aggrieved  party. 

Sbo.  15.  The  party  so  aggrieved  may,  at  his  own  option, 
in  addition  to  the  punishment,  demand  for  himself  compen- 
sation not  exceeding  five  thousand  marks,  instead  of  claiming 
any  indemnification  obtainable  under  this  law.   Should  there 


t 


J;X 


22 


be  more  than  one  infringer  in  any  caae,  they  are  conjointly 
licble.  A  compensation  thus  adjudged  precludes  the  de- 
manding of  any  further  indemnity. 

Sbo.  16.  The  Court,  however,  will  reserve  to  itself,  after 
duly  weighing  all  the  circumstances,  the  power  of  freely  de- 
ciding as  to  whether  any  damage  has  been  sustained,  and  to 
what  amount. 

Sbo.  17.  In  the  event  of  judgment  being  given  on  the 
ground  of  Sec.  14,  at  the  desire  of  the  aggrieved  party  all 
trade  marks  on  goods  or  packages  for  the  same  in  the  posses- 
sion of  the  defendant  may  be  destroyed,  and  if,  owing  to  the 
nature  of  the  goods  this  is  not  practicable  without  the  de- 
struction of  the  goods,  or  the  packages  containing  them,  the 
destruction  of  the  said  goods  or  packages  may  be  ordered. 
Should  the  judgment  be  delivered  in  criminal  prcMcess,  the 
aggrieved  party  has  a  i'jght  to  demand  that  it  be  made  pub- 
lie  at  the  expense  of  the  person  convicted.  The  manner  in 
which  the  judgment  is  to  be  made  public,  as  also  at  what 
time,  is  to  be  determined  when  judgment  is  delivered. 

Sec.  18.  The  protection  accorded  by  the  provisions  of  the 
present  law  to  the  owner  of  a  trade  mark,  a  name,  or  a  signa- 
ture, will  not  be  invalidated  in  case  such  trade  mark,  name 
or  signature  should  be  reproduced  with  such  alteration  as 
only  a  close  and  accurate  examination  could  detect. 

Sbo.  19.  Civil  law  suits  in  which  claims  are  advanced  in 
virtue  of  this  law  will  be  considered  in  the  spirit  of  both 
imperial  and  local  legislation  as  commercial  cases. 

Sbo.  20.  The  provisions  of  this  law  are  likewise  applicable* 


■NH 


23 


I     V 

I 


to  the  trade  marks  of  traders  who  have  no  bnsinet*  house  in 
this  country,  as  well  as  to  the  names  or  firms  of  foreign 
manufacturers  or  merchants,  if  in  the  State  in  which  they 
have  their  domicile,  according  to  a  notification  in  the  Reichs- 
Gesetzhlatt,  German  trade  marks,  names,  and  signatures 
enjoy  protection  ;  this,  however,  subject  to  the  following  con- 
ditions: (1)  The  announcement  of  a  trade  mark  is  to  be 
made  to  the  Ilandelsgericht,  Leipsic,  together  with  a  decla- 
ration that  the  person  making  the  announcement  will,  in 
cases  of  dispute,  submit  to  the  jurisdiction  of  the  above- 
named  Court;  (2)  With  the  announcement  proofs  must  be 
given  that  all  conditions  have  been  fulfilled  in  his  native 
country  under  which  the  person  making  the  announcement 
can  claim  protection  there  for  his  trade  mark ;  (3)  The  an- 
nouncement substantiates  a  right  to  the  trade  mark  only  for 
BO  long  a  time  as  the  person  making  the  announcement  is 
protected  in  his  own  country. 

Seo.  21.  This  law  shall  come  into  operation  on  the  1st  of 
May,  1875.  To  trade  marks  which,  up  to  the  present  time, 
have  been  protected  by  local  legislation,  the  same  legislative 
enactments  shall  continue  to  apply,  until  announcement  in 
accordance  with  the  provisions  of  the  present  law  has  been 
made,  and  which  must  take  place  prior  to  the  Ist  of  Ocj:ober, 
1875. 

Given  under  our  Imperial  hand  and  seal  at  Berlin,  the 
8'Oth  day  of  November,  1874. 

William. 
Ij.  S.  Pbinok  v.  Bismarck. 


t 


-<  r 


24 


CANADA 


..A,i» 


■,••- '-vv«-;*- 


AN  ACT  RESPECTING  TRADE  MARKS  AND 
INDUSTRIAL  DESIGNS. 

V  :^       n-  .      [Aaemted  to  16th  May,  1879.] 

Whereas  it  is  expedient  to  make  alterations  in  the  law 
providing  for  the  registration  of  Trade  Marks  and  Industrial 
designs :  Therefore  Her  Majesty,  by  and  with  the  advice  and 
consent  of  the  Senate  and  House  of  Commons  of  Canada, 
enact  as  follows : — 

1.  A  register  of  Tr%de  Marks  shall  be  kept  in  the  oflBce  of 
the  Minister  of  Agriculture  in  which  any  proprietor  of  a 
Trade  Mark  may  have  the  same  registered  by  complying  with 
the  provisions  of  this  Act. 

2.  The  Minister  of  Agriculture  may,  from  time  to  time, 
subject  to  the  approval  of  the  Governor  in  Council,  make 
rules  and  regulations  and  adopt  forms  for  the  purposes  of 
this  Act,  as  respects  Trade  Marks,  and  such  rules,  regulations 
and  forms  circulated  in  print  for  the  use  of  the  public,  shall 
be  deemed  to  be  correct  for  the  purposes  of  this  Act ;  and 
all  documents  executed  according  to  the  same  and  accepted 
by  the  Minister  of  Agriculture,  shall  be  lield  valid  so  far  as 
relates  to  oflScial  proceedings  under  this  Act. 


smm 


AND 


,1879.] 

1  the  \8ir 
Industrial 
bdyice  and 
r  Canada, 

le  office  of 
ietor  of  a 
lying  with 

le  to  time, 
Dcil,  make 
urpoees  of 
■egnlations 
iblic,  shall 
Act;  and 
d  accepted 
id  so  far  as 


'iii^M' 


25 


8.  The  Minister  of  Agriculture  may  canee  a  seal  to  be 
made  for  the  purposes  of  this  Act  and  may  cause  to  be  sealed 
therewith  trade  marks  and  other  instruments  and  copies 
proceeding  from  his  office  in  regard  of  trade  marks. 

4.  From  and  after  the  first  day  of  July,  one  thousand  eight 
hnndred  and  seventy-nine,  no  person  shall  be  entitled  to  in- 
stitute any  proceeding  to  prevent  the  infringement  of  any 
trade  mark  until  and  unless  such  trade  mark  is  registered  in 
pursuance  of  this  Act.  Provided  always,  that  actions  may 
be  instituted  as  heretofore  against  persons  fraudulently  mark- 
ing merchandise  in  accordance  with  the  Act  thirty-five 
Victoria,  chapter  thirty-two,  intituled  "  An  Act  to  amend  the 
law  relating  to  the  fraudulent  marking  of  merohandiee^'' 
even  in  the  absence  of  r^istration. 

5.  The  Minister  of  Agriculture  may  object  to  roister  any 
trade  mark  in  the  following  cases : — First.  If  the  said  trade 
mark  proposed  for  registration  is  identical  with  or  resembles 
a  trade  mark  already  registered  :  Second.  If  it  appears  that 
the  said  trade  mark  is  calculated  to  deceive  or  mislead  the 
public:  Third.  If  the  said  trade  mark  contains  any  im- 
morality or  scandalous  figure :  Fowth.  If  the  so  called  trade 
mark  does  not  contain  the  essentials  necessary  to  constitute 
a  trade  mark,  properly  speaking. 

6.  The  proprietor  of  a  trade  mark  may  have  it  registered 
by  forwarding  to  the  Minister  of  Agriculture  a  drawing  and 
description  in  duplicatie  of  such  trade  mark,  together  with  a 
declaration  that  the  same  was  not  in  use  to  his  knowledge 
by  any  other  person  than  himself  at  the  time  of  his  adoption 


m 


^m^' 


19 


thereof;  the  whole  being  aceompanied  with  the  fee  herein- 
after provided. 

7.  On  compliance  with  the  requiroiiientH  of  this  Act  and 
of  the  niles  liereinhefore  provided  for,  the  Minister  shall  re- 
giater  the  trade  mark  of  the  proprietor  so  applying,  and  shall 
return  to  the  sarid  proprietor  one  copy  of  the  drawing  and 
description  with  a  certificate  signed  by  the  Minister  or  his 
Deputy  to  the  effect  that  the  said  trade  mark  has  been  duly 
registered  in  accordance  with  the  provisions  of  this  Act,  and 
there  shall  be  further  stated  in  such  certificate  the  date,  month 
and  year  of  the  entry  thereof,  in  the  register ;  and  every  such 
certificate  purporting  to  be  so  signed  shall  be  received  in  all 
courts  of  law  or  of  equity  in  Canada,  as  prima  facie  evidence 
of  the  facts  ^herein  alleged  without  proof  of  the  signature. 

8.  For  the  purposes  of  this  Act,  all  marks,  names,  brands, 
labels,  packages  or  other  business  devices,  which  may  be 
adopted  for  use  by  any  person  in  his  trade,  business,  occupa- 
tion or  calling,  for  the  purpose  of  distinguishing  any  manu- 

■  facture,  product  or  article  of  any  description  by  him  manu- 
factured, produced,  compounded,  packed  or  offered  for  sale, 
no  matter  how  applied,  whether  to  such  manufacture,  pro- 
duct or  article,  or  to  any  package,  parcel,  case,  box  or  other 
vessel  or  receptacle  of  any  description  whatever  containing 
the  same,  shall  be  considered  and  known  as  trade  marks,  and 
may  be  registered  for  the  exclusive  use  of  the  party  register- 
ing  the  same  in  the  manner  herein  provided ;  and  thereafter 
he  shall  have  the  exclusive  right  to  use  the  same  to  designate 
articles  manufactured  or  sold  by  hint :  and  for  the  purposes 


ieo  herein - 

is  Act  and 
er  shall  re- 
^,  and  shall 
awing  and 
iater  or  his 
i  been  duly 
Is  Act,  and 
late,  month 
every  such 
eived  in  all 
le  evidence 
lignature. 

les,  brands, 
3h  may  be  . 
388,  occupa- 
any  manu- 
him  mann- 
ed for  sale, 
icture,  pro- 
lox  or  other 
containing 
marks,  and 
rty  register- 
1  thereafter 
to  designate 
he  purposes 


mrn^- 


9ft 


of  this  Act,  timber  or  Inmbor  of  any  kind  upon  which  labor 
has  been  ex{>euded  by  any  person  in  his  trade,  business, 
occupation  or  calling,  shall  be  dueniod  a  manufacture,  pro- 
duct or  article. 

9.  A  trade  mark  may  bu  genoral  or  Hpecilic,  according  to 
the  use  made  or  intended  to  bo  made  by  the  proprietor  there- 
of, for  the  sale  of  various  articles  in  which  he  deals  in  his 
trade,  business,  occupation  or  calling  generally,  or  specific  if 
applied  or  intended  to  apply  to  the  sale  of  a  class  of  mer- 
chandise of  a  particular  description,  r, 

10.  A  general  trade  mark  once  registered  and  destined  to 
be  the  sign  in  trade  of  tlie  proprietor  thereof  shall  endure 
without  limitation.  A  specific  trademark  for  the  sale  of  a 
opecial  class  of  goods  or  merchandise  when  registered  shall 
endure  for  the  period  of  twenty-five  years,  subject  before  the 
expiration  of  the  said  period  to  the  renewal  thereof  by  the 
proprietor  thereof,  or  his  legal  representative,  such  renewal 
being  subject  to  re-registration  at  or  before  the  expiration  of 
such  periods  of  twenty-five  years,  for  any  number  of  times. 

11.  The  proprietor  of  a  trade  mark  applying  for  its  regis- 
tration must  state  in  his  application  whether  the  said  trade 
mark  is  intended  to  be  used  as  a  general  trade  mark  or  as 
a  specific  trade  mark. 

12.  Before  any  action  is  taken  in  relation  to  an  applica- 
tion for  registering  a  trade  mark  the  following  fees  shall 
be  payable  into  the  hands  of  the  Minister  of  Agriculture,  to 
wit: —  ■  ' 


• 


rnl 


28 


On  every  applioation  to  register  a  general  trade  mark,  including  oer- 

tifloate ISO  00 

On  everr  applioation  to  register  a  speoifio  trade  mark,  including  cer- 
tificate  28  00 

On  every  applioation  for  the  renewal  of  the  registration  of  a  specific 

trade  mark,  including  certificate . .' 20  00 

For  copy  of  each  certificate  of-  registration,  separate  from  the  return 

of  the  duplicate  hereinbefore  mentioned 1  00 

For  the  recording  of  an  assignment,  as  hereinafter  provided 2  00 

For  office  copies  of  documents,  not  above  mentioned,  per  every  hun- 
dred words  or  less 0  60 

For  each  copy  of  any  drawing  or  emblematio  trade  mark,  the  reason-   '' '  >'•'-' 
able  expenses  of  preparing  the  same. 

All  of  which  fees  shall  be  paid  over  by  the  Minister  of 
Agriculture  to  the  Receiver-General  of  Canada;  provided 
always,  that  in  case  of  refusal  to  register  the  trade  mark  for 
which  application  is  made,  the  fee  shall  be  returned  to  the 
applicant  or  his  agent,  with  the  exception  of  the  sum  of  five 
dollars,  to  be  retained  in  compensation  of  office  expenses. 

13.  Any  person  having  registered  a  trade  mark  may 
petition  for  the  cancellation  of  the  same,  and  the  Minister  of 
Agriculture  may  on  receiving  such  petition^  cause  the  said 
trade  mark  to  be  so  cancelled ;  and  the  same  shall,  after  such 
cancellation,  be  considered  as  if  it  had  never  -been  registered 
under  the  name  of  the  said  party. 

14.  Every  trade  mark  registered  in  the  office  of  the  Minis- 
ter of  Agriculture  shall  be  assignable  in  law,  and  on  the 
assignment  being  produced  and  the  fee  hereinbefore  provided 
being  paid,  the  Minister  of  Agriculture  shall  cause  the  name 
of  the  assignee,  with  the  date  of  the  assignment  and  such 
other  details  as  he  may  see  fit,  to  be  entered  on  the  margin 


1 


^.J^' 


Iff  oer- 

...♦TOOO 

r  ....  26  00 

^    ....  20  00 

retam 
....     100 

....     2  00 

■y  hun- 

....     0  60 

reaaon- 


Miniater  of 
provided 
le  mark  for 
■ned  to  the 
sum  of  five 
cpenses. 

mark  may 

Minister  of 

ise  the  said 

il,  after  such 

m  registered 

f  the  Minis- 
and  on  the 
)re  provided 
Lse  the  name 
nt  and  such 
the  margin 


29 


of  the  register  of  trade  murks  on  tlie  tolio  wliere  such  trade 
mark  is  registered. 

15.  If  any  person  makes  application  to  register,  as  his 
own,  any  trade  mark  which  has  been  already  registered,  the 
Minister  of  Agriculture,  if  not  satisLed  that  such  person  is 
undoubtedly  entitled  to  the  exclusive  use  of  such  trade  mark, 
shall  cause  all  parties  interested  therein  to  be  notified  to 
appear,  in  person  or  by  attorney,  before  him,  with  their 
witnesses,  for  the  purpose  of  establishing  which  is  the  right- 
ful owner  of  such  trade  mark,  and  after  having  heard  the 
parties  and  their  witnesses,  the  said  Minister  sliall  order  such 
entry  or  cancellation,  or  both,  to  bo  made  as  he  shall  deem 
just;  in  the  absence  of  the  said  Minister,  his  Deputy  may 
hear  and  determine  the  case  and  make  such  entry  or  can- 
cellation or  both,  as  to  right  and  justice  may  appertain ;  and 
any  error  in  registering  trade  marks  or  any  oversight  about 
conflicting  registrations  of  trade  marks  may  be  settled  in  the 
same  manner. 

16.  If  any  person,  other  than  the  party  who  has  registered 
the  same,  marlrs  any  goods  or  any  article  of  any  description 
whatever  with  any  trade  mark  registered  under  the  provisions 
of  this  Act,  or  with  any  part  of  such  trade  mark,  whether  by 
applying  such  trade  mark  or  any  part  thereof  to  the  article 
itself  or  to  any  package  or  thing  containing  such  article,  or 
by  using  any  package  or  thing  ao  marked  which  has  been 
used  by  the  proprietor  of  such  trade  mark,  or  knowingly 
sells  or  offers  for  sale  any  article  marked  with  such  trade 
mark,  or  with  any  part  thereof,  with  intent  to  deceive  and 


80 


if  Hi! 


!'  ■>'.! 


l\ 


to  induce  pereons  to  believe  that  such  article  was  manu- 
factured, produced,  compounded,  packed  or  sold  by  the 
proprietor  of  such  trade  mark,  he  shall  bo  guilty  of  a  misde- 
meanor, and,  on  conviction  thereof,  shall  forfeit,  for  each 
offence,  a  sum  not  less  than  twenty  dollars  and  not  exceeding 
one  hundred  dollars,  which  amount  shall  be  paid  to  the  pro- 
prietor of  such  trade  mark,  together  with  the  costs  incii.iod 
in  enforcing  and  recovering  the  same ;  Provided  always,  that 
every  complaint  under  this  section  shall  be  made  by  the 
proprietor  of  euch  trade  mark,  or  by  some  one  acting  on  his 
behalf  and  duly  authorized  thereto. 

• 

17.  A  suit  may  be  maintained  by  any  proprietor  of  a  trade 
mark  against  any  person  nsi.ng  his  registered  trade  mark,  or 
any  fraudulent  imitation  thereof,  or  selling  articles  bearing 
such  trade  mark  or  any  such  imitation  thereof,  or  contained 
in  packages  being  or  purporting  to  be  his,  contrary  to  the 
provisions  of  this  Act. 

18.  Any  person  may  be  allowe<i  to  inspect  the  register  of 
trade  marks,  and  the  Minister  of  Agriculture  may  cause 
copies  or  representations  of  trade  marks  to  be  delivered,  on 
the  applicant  for  the  same  paying  the  fee  or  fees  hereinbefore 
provided. 

19.  Clerical  errors  happening  in  the  drawing  up  or  copy- 
ing of  any  instrument  under  this  Ant  shall  not  be  construed 
as  invalidating  the  same,  and  when  discovered  they  may  be 
corrected  under  the  authorI^y  of  the  Minister  of  Agriculture. 


was  manu- 
old  by  the 
'  of  a  misde- 
it,  for  each 
)t  exceeding 
1  to  the  pro- 
fits inciitiod 
always,  that 
ade  by  the 
ctiiig  on  his 

}r  of  a  trade 
de  mark,  or 
teles  bearing 
)r  contained 
t'rary  to  the 

e  register  of 

may  cause 

lelivered,  on 

berein  before 


up  or  copy- 
)e  construed 
they  may  be 
Agriculture. 


-ttk^ 


« 


BKLGHTTM. 


Trade  Mark  Law,  Approved  April  \st,  1879. 


s  ■{ 


Article  1.  Is  considered  as  a  mark  of  manufacture  or  of 
commerce,  every  sign  serving  to  distinguish  the  products  of 
an-  industry,  or  the  objects  of  a  commerce. 

The  name  of  a  person  as  well  as  that  of  a  commercial  or 
indnstrial  house,  may  be  used  as  a  mark  in  the  distinctive 
form  given  to  it  by  the  owner. 

Art.  2.  No  one  can  claim  the  exclusive  use  of  a  mark 
if  he  has  not  deposited  the  model  in  triplicate,  with  the 
stereotype  of  his  mark,  at  the  office  of  the  clerk  of  the  tri- 
bunal of  commerce  in  the  place  where  his  establishment  is 
situated. 

Abt.  3.  Whoever  has  first  made  use  of  a  mark  may  alone 
make  the  deposit. 

Art.  4.  The  instrument  of  deposit  is  inscribed  on  a 
special  register  and  signed  both  by  the  depositor  or  his  attor- 
ney, and  the  clerk ;  the  power  of  attorney  remains  annexed 
to  the  instrument.  It  states  the  day  and  hour  of  the  deposit. 
It  indicates  the  kind  of  industry  or  of  commerce  for  which 
the  depositor  intends  to  employ  the  mark.  . 

A  copy  of  the  instrument  of  deposit  is  given  to  the  de- 
positor. 

Another  copy  is  sent,  within  the  week,  with  one  of  the 
deposited  models  and  the  stereotpyo  of  the  mark  to  the  central 


♦ 


■^ 


-^ 


r 


83 

office  by  which  the  announcement  of  the  deposit,  the  descrip- 
tion and  the  design  of  the  mark  shall  be  published  in  a  special 
publication  six  months  at  the  farthest  after  the  reception  of 
the  packet. 

Art.  5.  For  each  mark  deposited  a  tax  of  two  francs 
is  paid.  Tlie  deposit  is  only  received  on  the  production  of  a 
receipt  proving  the  payment  of  the  tax. 

Abt.  6.  Foreigners  who  conduct  in  Belgium  industrial 
or  commercial  establishments,  enjoy  for  the  products  of 
these  establishments  the  benefits  of  the  present  law  by  ful- 
filling the  formalities  which  it  prescribes. 

The  same  applies  to  foreigners  or  Belgians  who  conduct 
their  industry  or  commerce  out  of  Belgium,  if  in  the  coun- 
tries where  their  establishments  are  situated  international 
conventions  have  stipulated  reciprocity  for  Belgian  marks. 
In  the  latter  case  the  deposit  of  the  marks  conveyed  takes 
place  at  the  office  of  the  clerk  of  the  Tribunal  of  Commerce 
of  Brussels. 

Art.  7.  A  mark  cannot  be  conveyed  except  with  the 
establishment  of  which  it  serves  to  distinguish  the  objects  of 
manufacture  or  of  commerce. 

Every  conveyance  of  a  mark  between  the  living  shall  be 
registered  at  the  fixed  charge  of  ten  francs. 

The  conveyance  is  of  no  effect  as  to  third  persons,  until 
after  a  deposit  of  an  extract  of  the  conveyance  in  the  forms 
prescribed  for  the  deposit  of  the  mark. 

Abt,  8,  Are  punished  by  an  imprisonment  of  from  eight 


the  descrip- 
in  a  special 
reception  of 

two  francs 
luction  of  a 

a  industrial 

products  of 

law  by  ful- 

^ho  conduct 
in  the  coun- 
ntemational 
Igian  marks, 
iveyed  takes 
f  Commerce 

ipt  with  the 
he  objects  of 

ing  shall  be 

)er8ons,  until 
in  the  forms 

►f  from  eight 


days  to  six  months,  and  a  fine  of  twenty-six  francs  to  two 
thousand  francs,  or  of  one  of  these  penalties  alone. 

(a.)  Those  who  have  connterfeited  a  mark,  and  those  who 
have  fraudulently  made  use  of  a  counterfeit  mark. 

{b.)  Those  who  have  fraudulently  affixed,  or  made  to  appear 
by  additions,  retrenchment  or  by  any  alteration,  on  the  pro- 
ducts of  their  industry,  or  the  objects  of  their  commerce,  a 
mark  belonging  to  another. 

{o.)  Those  who  have  knowingly  sold,  put  on  sale  or  in  cir- 
culation products  clothed  with  a  counterfeit  mark  or  mark 
fraudulently  affixed. 

Abt.  9.  Are  punished  as  authors  of  the  offences  provided 
for  in  the  preceding  article.  Those  who  shall  have  committed 
them,  or  shall  have  co-operated  directly  in  their  commission. 
Those  who  by  some  act  shall  have  given  aid  without  which 
the  crime  could  not  have  been  committed.  Those  who  by 
gifts,  promises,  menaces,  abuse  of  authority  or  power,  plots 
or  culpable  artifices,  shall  have  directly  instigated  the  of- 
•  fence. 

Art.  10.  May  be  condemned  to  an  imprisonment  of  one 
year,  and  to  a  fine  of  four  thousand  francs,  or  to  one  of  these 
penalties  alone,  whoever  shall  have  committed  one  of  the 
crimes  mentioned  in  Article  8  in  the  five  years  which  follows 
a  preceding  conviction  under  that  article. 

Art.  11.  If  there  exist  extenuating  circumstances,  the 
penalties  of  imprisonment  and  fine  imposed  by  reason   of 


34 


Article  8  may  be  reduced  respectively  to  above  eight  days 
and  above  twenty-six  francs,  but  they  may  not  be  less  than 
the  penalties  of  simple  police. 

Abt.  12.  May  be  confiscated  in  whole  or  in  part,  the 
products  bearing  a  counterfeit  or  falsoly  applied  mark,  as 
well  as  the  instruments  and  utensils  having  specially  served 
in  the  commission  of  the  crime,  if  the  convicted  is  the  owner. 

The  confiscated  objects  may  be  granted  to  the  plaintiff  in 
civil  proceedings  on  account  or  aid  of  his  damages.  * 

The  tribunal  may  order  in  any  case,  the  destruction  of  the 
counterfeit  marks. 

Art.  13.  The  tribunal  may  order  that  that  judgment 
be  posted  in  the  places  which  it  shall  designate,  and  inserted 
in  whole  or  in  part  in  the  newspapers  which  it  shall  indicate, 
at  the  expense  of  the  convicted. 

Abt.  14.  The  public  prosecution  can  only  be  commenced 
on  the  complaint  of  the  party  injured. 

Aet.  15.  The  provisions  of  the  law  of  25th  March,  1876, 
on  competence  in  disputed  matters  are  applicable  to  the  civil 
action  relative  to  the  use  of  marks,  when  this  action  is  brought 
separately  from  the  public  prosecution. 

Abt.  16.  The  depobit  of  a  mark  made  contrary  to  the  pro- 
visions of  the  present  law  shall  be  declared  void  on  the  demand 
of  an  interested  party. 

The  judgment  which  pronounces  the  nullity,  after  it  shall 


7 


above  eight  days 
J  not  be  less  than 


)le  or  in  part,  the 
applied  mark,  as 
ng  specially  served 
tricted  is  the  owner. 

1  to  the  plaintiff  in 
damages. 

)  destruction  of  the 

lat  that  judgment 
ignate,  and  inserted 
ich  it  shall  indicate, 

only  be  commenced 

25th  March,  1876, 
iplicable  to  the  civil 
lis  action  is  brought 

contrary  to  the  pro- 
void  on  the  demand 

lullity,  after  it  shall 


have  acquired  the  force  o^  a  judgment,  shall  be  noted  in  the 
margin  of  the  certificate  of  deposit. 

Abt.  17.  Are  repealed,  the  laws  in  force  in  reference  to 
trade  marks,  and  especially,  the  resolution  of  25  nivose  year 
IX,  the  laws  of  the  22  germinal  year  XI,  the  decrees  of  20 
February,  and  of  6  September,  1810,  the  royal  dejree  of  25 
December,  1818,  the  resolution  of  1st  June,  1820,  as  well  as 
the  provisions  of  Article  50  of  the  law  of  7  February,  1859, 
and  of  Articles  184-213  and  214  of  the  Penal  Code  so  far  as 
they  apply  to  said  marks.         '    -       ■/        < 

.  ^Nothing  is  enacted  which  concerns  the  special  marks  ap- 
plied for  the  security  of  the  public,  and  especially  for  the 
execution  of  the  common  laws  concerning  customs  and  fire 
arms. 

Art.  18.  Every  deposit  of  a  mark  made  under  existing 
laws  shall  cease  to  h^.ve  effect  the  1st  of  January,  1881,  if  it 
has  not  been  renewed  before  that  date  conformably  to  Art.  2. 

The  new  deposit  shall  be  free  from  stamp  and  register  duty, 
and  the  tax  imposed  by  Article  5. 

Abt.  19.  The  Government  may  conclude  international 
conventions,  or  sign  articles  additional  to  existing  conventions 
granting  to  foreigners,  and  to  Belgians  who  export  from  Bel- 
gium their  industrial  and  commercial  products,  the  exclusive 
use  of  their  mark  in  Belgium  on  condition  of  compliance  with 
the  formalities  prescribed  by  the  present  law,  and  of  reciprocity 
for  Belgian  marks. 


■N. 


'1^  1' 


86 

It  may  also,  on  conditions  which  it  shall  determine,  author- 
ize the  deposit  of  marks,  and  the  payment  of  the  tax  in  the 
Belgian  consulates  abroad. 

Abt.  20.  A  royal  decree  shall  determine  the  time  of  taking 
effect  of  the  present  law,  the  formalities  to  be  employed  for 
the  deposit  and  the  publication  of  marks,  as  well  as  the  neos- 
sary  measures  for  the  execution  of  the  law. 


termine,  author- 
>f  the  tax  in  the 

le  time  of  taking 
»e  employed  for 
'ell  aa  the  ner'^a- 


37 


RUSSIA. 


Eatraot  from  the  Laws  rdating  to  Mcmufacturing  Industry. 
Code  of  Civil  Laws,  Vol.  XI.     Paet  2. 

Edition  of  1861 


Relativb  to  the  Imposition  of  Masks  on  Pbodhots  of 
Russian  Mills  and  Manufactories. 

Secthon  74.  The  right  of  stamping  or  marking  Russian 
manufactured  produce  of  various  descriptions  shall  be  enjoy- 
ed by  every  manufacturer.  It  shall  not  be  lawful  to  make 
searches  in  factories  and  domestic  industrial  establishments, 
to  ascertain  whether  their  products  have  been  stamped  or  not. 

Seo.  75.  Russian  products,  the  exportation  of  which  is  not 
prohibited  by  the  present  dispositions  of  the  tariff,  shall  be 
admitted  at  the  Custom  Houses  for  exportation,  without  let 
or  hindrance,  whether  such  products  be  stamped  or  not. 

Seo.  76.  Stamped  products  of  Russian  origin  enjoy  the 
following  privileges, : — (1st).  If  among  foreign  goods  which 
have  not  paid  duty  Russian  goods  are  found  bearing  an  un- 
doubted Russian  trade  mark,  they  shall  be  held  to  be  home- 
made goods,  not  subject  to  confiscation ;  and  may,  in  case  of 
need,  be  considered  as  guarantees  for  fines,  like  all  other 
goods,  in  conformity  with  the  Customs  Laws.    But  if,  among 


38 


'ii 


the  contraband  goods,  tlit-re  shonld  be  found  articles  alleged 
to  be  Kussiau  without  having  a  mark  coniirmiiig  ruch  origin, 
the}'  ahull  be  subjected  to  coutiscation,  without  any  kind  of 
inquiry  being  made  respecting  their  origin.  (2d).  If  Russian 
goods  provided  with  the  proper  stamp  be  sent  abroad,  and 
thence  retunied  to  the  Empire  owing  to  their  having  remained 
unsold,  they  shall  be  passed  without  hindrance  free  of  duty  ; 
unstamped  goods,  however,  shall  be  treated  like  foreign  pro- 
duce, in  conformity  with  the  Customs  Laws.      • - 

Se«.  77.  The  following  general  rules  shall  be  obsei-ved 
respecting  the  introduction  of  a  uniform  regulation  in  the 
stamping  of  products.  (1st).  The  stamp  must  contain,  even 
if  only  in  initials,  the  Christian  name  and  surname  of  the 
producer,  and  the  place  of  his  residence.  The  stamp  must 
be  durable  and  clear ;  the  letters  thereon  must  be  unmis- 
takeably  Russian ;  other  letters  may  be  used  on  condition 
that  a  Russian  mark  shall  in  addition  be  employed.  (2nd). 
On  establishing  a  new  manufactory,  the  founder  of  the  same 
shall,  if  he  intends  to  place  a  stamp  on  his  manufactures, 
give  notice  thereof  to  the  Department  of  Commerce  and  In- 
dustry, stating  where  and  for  what  purpose  the  manufactory 
is  to  be  established.  To  this  must  be  added  a  sample  and 
description  of  the  stamp  intended  to  be  placed  on  the  goods« 
(3rd).  On  selling  or  abandoning  the  manufactory,  the  man- 
ufacturer shall  also  give  notice  tliereof  to  the  Department  of 
Commerce  and  Industry.  (4th).  If  a  manufacturer  deems 
it  necessary  to  effect  an  alteration  m  his  stamps,  he  shall  give 
previous  notice  to  the  Department  of  Commerce  and  Industry, 


n 


mmt 


'M) 


7 


rticles  alleged 
g  t-jch  origin, 
any  kind  of 
If  Russian 
abroad,  and 
ring  remained 
free  of  duty ; 
Q  foreign  pro- 
be obseiTed 
ilation  in  the 
contain,  even 
imame  of  the 
stamp  must 
ist  be  unmis- 
on  condition 
loyed.    (2nd). 
)r  of  the  same 
manufactures, 
merce  and  In- 
)  manufactory 
a  sample  and 
on  the  goods^ 
;ory,  the  man- 
)epartment  of 
icturer  deems 
,  he  shall  give 
and  Industry, 


stating  the  period  at  which  ho  intends  to  make  use  of  the 
new  stamps.  (6th).  If  the  Dcpiirtniont  of  Commerce  and 
Industry  Hnds  that  the  projected  stamp  is  impracticable,  or 
not  in  conformity  with  the  regulations,  or  too  much  resembles 
another  stamp,  the  altcnitiun  of  hucIi  mark  will  be  required. 

Seo.  78.  Whosoever  falsifies  ft)reign  marks  or  signs,  which 
have  been  adopted  with  the  sanction  of  the  Government,  on 
manufactures  or  products  of  manufact^' '  'es,  factories,  or  other 
establishments,  shall  be  subject  to  the  penalties  imposed  by 
Art.  1354  of  the  Penal  Code,  besides  the  payment  of  damages 
caused  by  such  falsifications.* 

8ec.  79.  (1868).  In  case  Russian  goods,  not  provided 
^ith  a  proper  stamp,  are  returntnl  to  the  Russian  Empire 
from  abroad,  they  shall  only  enjoy  the  right  of  a  free  entry 
without  paying  duty  if  the  proprietors  shall  produce  the 
original  customs'  certificate  proving  them  to  have  been,  in 
fact,  exported  from  Russia. 

Seo.  80.  It  is  not  necessary  to  stamp  the  products  of  trades 
and  guilds  not  specially  designated. 

Seo.  81.  It  is  not,  however,  prohibited  to  stamp  products 
of  this  kind  (Sec.  80),  or  of  the  kinds  mentioned  in  the  sup- 
plement to  Sec.  79,  provided  samples  of  the  marks  have  been 
submitted  to  the  Department  of  Commerce  and  Industry,  in 
conformity  with  the  general  regulations. 


•  Deprivfttion  of  all  olvU  rights  and  exile  to  distant  ptovinoes  of  the  Empire, 
other  than  those  of  Siberia,  or  to  imprisonment  In  a  house  of  correotlon  for  a  term 
ranging  from  four  months  to  eight  months. 


^■iffuyg'-i^,;^ 


40  • 

Seo.  82.  Although  the  prodactn  of  peasants,  properly  so 
called,  which  are  not  subject  to  staraping,  are  enumerated 
in  this  law,  yet  (just  as  it  is  ordained  in  the  tariff  regulations 
that  articles  not  enumerated  in  the  tariff  may  be  treated  as 
•imilar  objects  which  are  enumerated)  the  Department  of 
Commerce  and  Industry  shall  be  at  liberty,  with  the  sanction 
of  the  Minister  of  Finance,  to  assign  new  products  to  their 
necessary  places,  and  may,  according  to  its  judgment,  either 
assimilate  them  to  such  goods  as  require  stamping  in  order 
to  be  recognized  as  Russian  goods,  or  assimilate  them  to  such 
goods  as  are  by  themselves  recognized  as  the  products  of 
peasants.    For  it  cannot  be  assumed  that  it  will  be  necessary, 
for  the  future,  to  enumerate  all  such  products  without  omit- 
ting a  single  one  of  them,  seeing  that  products  are  subject 
to  alterations,  from  time  to  time,  both  in  respect  to  quality 
and  appearance,  and  with  regard  to  their  mateVial  relation 
and  nomenclature. 


■I  !l 


' 


7 


41 


properly  8o 
i  oDumerated 

ff  regulations 

be  treated  as 
apartment  of 

the  sanction 
iucts  to  their 
jment,  either 
ping  in  order 
them  to  such 

products  of 
be  necessary, 
without  omit- 
a  are  subject 
<5t  to  quality 
sVial  relation 


AUSTRIA. 

LAW  FOR  THE  PROTECTION  OF  TRADE  MARKS 
AND  OTHER  DENOTATIONS. 

Impbrial  Patent  of  December  7, 1868.    To  take  KnrBor 
Janvabt  1,  1869. 

' '       ,  ■*'■,,  .  .■  -  J  .  -'      '  "     .'         '  ■,  ■         "  • 

t 

'        I.     Oetieral  Provisions.  i         *      '* 

Sec.  1.  In  this  law  marks  are  understood  to  be  those  special 
signs  which  serve  to  distinguish  the  productions  and  goods  of 
one  tradesman  intended  for  the  commercial  market,  from 
those  of  any  other  tradesman  (devices,  ciphers,  vignettes  and 
the  like). 

Sec.  2.  A  tradesman  who  wishes  to  secure  to  himself  the 
sole  right  to  the  use  of  a  mark,  must  have  it  registered  accord- 
ing to  the  provisions  of  the  next  division. 

Seo.  3.  No  exclusive  right  can  be  acquired  in  marks  which 
consist  of  such  signs  as  are  commonly  used  in  the  trade  in 
particular  kinds  of  goods,  nor  in  such  as  consist  merely  of 
letters,  words  or  numbers,  or  of  the  arms  of  States  and 
Oonntries. 


i 


43    '     -■'''"■'"■■:::v;-'t:::-.';--'. 

Sec.  4,  The  exclusive  right  to  a  mark  preclndea  the  use 
thereof  hy  other  tradesmen  only  in  regard  to  that  kind  of 
goodij  to  which  the  productions  or  commercial  articles  of  the 
trade  to  which  the  protected  mark  is  intended,  belong. 

Sec.  5.  The  right  in  marks  continues  with  the  trade  under- 
taking for  which  the  marks  are  intended ;  it  expires  therewith 
and  changes  owners  therewith. 

In  the  latter  case,  however,  unless  the  business  be  carried 
on  by  the  widow  or  an  heir  under  age,  or  on  account  of 
inheritors  or  creditors,  the  new  owuer  must  have  the  mark 
transferred  to  his  name  within  three  months ;  otherwise  the 
right  in  them  expires. 

Seo.  6.  No  one  must  arbitrarily  appropriate  to  himself  the 
name,  style,  arms,  or  designation  of  the  establishment  of 
another  inland  trader  or  producer,  for  the  denotation  of  goods. 

Smo.  7.  All  that  is  said  in  this  law  about  the  denotation  of 
goods  also  applies  to  the  denotation  affixed  to  the  packing, 
the  receptacles,  wrappers,  &c. 

Sec.  8.  The  present  law  makes  no  alteration  in  the  exist- 
ing regulations  respecting  the  special  distinguishing  marks 
prescribed  for  certain  goods,  particularly  the  stamping  regu- 
lations. 

II.    Registration  of  the  Marks, 

Sbc.  9.  The  mark  for  which  a  trader  wishes  to  secure  to 
himself  the  exclusive  right  of  use  (§  2)  must  be  delivered  in 
two  copies  to  the  Chamber  of  Commerce  and  Industry  in  the 
district  whereof  the  industrial  undertaking  is  situated,  where- 


snu 


precludes  the  use 
rd  to  that  kind  of 
rcial  articles  of  the 
nded,  belong. 

ith  the  trade  nnder- 
it  expires  therewith 

business  be  carried 
or  on  account  of 
ust  have  the  mark 
iths ;  otherwise  the 

>riate  to  himself  the 
te  establishment  of 
denotation  of  goods. 

ut  the  denotation  of 
Eed  to  the  packing, 

sration  in  the  exist- 
stingnishing  marks 
the  stamping  regu- 

wishes  to  secure  to 
just  be  delivered  in 
and  Industry  in  the 
>g  is  situated,  where- 


r—*^- 


in  use  is  to  be  made  of  it;  one  copy  is  to  be  inserted  in  the 
Register  of  Marks,  which  is  to  be  kept  by  the  Chamber  of 
Commerce  and  Industry ;  the  other  is  to  be  returned  to  the 
party  with  the  certification  directed  in  the  following  section. 

Sbo.  10.  The  appointed  functionary  of  the  Chamber  of 
Commerce  and  Industry  is  to  set  down  on  each  copy— (a,) 
tlie  running  number  of  the  register,  (h.)  The  day  and  hour 
of  delivery,  {c.)  The  name  in  which  the  mark  has  been 
registered,  (d.)  The  designation  of  the  industrial  enterprise 
for  which  it  is  intended.  And  ho  is  to  sign  this  notification 
and  to  affix  the  official  seal  thereto. 

Seo.  11.  The  registration  is  subject  to  a  duty  of  5  fl., 
which  goes  into  the  chest  of  the  Chamber  of  Commerce. 

Sec.  12.  With  the  day  and  the  hour  of  the  delivery  of  the 
mark  at  the  Chamber  of  Commerce  and  Industry,  the  sole 
right  to  the  use  of  the  mark  begins  for  the  depositor,  and  the 
priority  of  the  claim  will  be  adjudged  according  thereto,  if 
the  same  mark  should  be  deposited  by  several  tradesmen  at 
the  same  or  different  Chambers  of  Commerce  and  Industry. 

Seo.  13.  To  transfer  the  right  to  a  mark,  as  mentioned  in 
section  5,  the  applicant  must  produce  proof  of  the  acquisition 
of  the  industrial  undertaking  concerned.  The  transfer  is 
subject  to  the  same  duty  as  the  first  registration. 

Sec.  14.  Tlie  Registers  of  Marks  are  to  be  open  to  every 
one's  inspection  at  the  Chambers  of  Commerce  and  Industry. 


44 

in.    Microaohments,  Infringements  and  Penalti'is. 

Sbo.  15.  Every  encroachment  on  the  right  to  a  mark, 
whether  by  the  illegal  appropriation  or  imitation  of  a  mark, 
or  by  the  consumption  of  goods  thus  illegally  marked,  gives 
the  injured  party  the  right  to  insist  on  the  stoppage  of  the 
further  use  of  the  illegal  mark  and  on  the  removal  thereof 
from  the  goods  marked  therewith,  so  far  as  they  are  intended 
for  sale.  He  may  also  demand  that  the  tools  and  apparatus 
exclusively  or  especially  used  for  this  purpose  be  made 
unserviceable. 

Claims  by  the  injured  party  for  compensation  for  the  inju- 
ry suffered  through  the  encroachment  on  his  right  in  a  mark, 
are  to  be  decided  according  to  the  civil  law. 

Sbo.  16.  It  is  to  be  considered  an  imitation  if  the  marks  in 
question  cannot  be  distinguished  without  moire  than  the 
ordinary  attention. 

Sbo.  17.  The  provisions  contained  in  section  15  are  also 
applicable  to  any  one  who  (a)  illegally  appropriates  the 
name,  style,  arms,  or  the  special  designation  of  another  inland 
trader  or  producer,  for  the  denotation  of  goods  intended  for 
sale ;  (b)  introduces  into  commerce  productions  or  articles  for 
sale  which  are  furnished  with  an  unauthorized  denotation  of 
this  kind. 

Sec.  18.  If  the  encroachment  (sections  16  and  17)  has 
been  knowingly  committed,  a  fine  of  from  25  to  500  fl.  is  to 
be  imposed  on  the  offender,  besides  any  punishment  incurred 
according  to  the  general  penal  law. 


' 


45 


°enaltUa. 

to  a  mark, 
n  of  a  mark, 
larked,  gives 
tppage  of  the 
loval  thereof 
are  intended 
Qd  apparatus 
>8e  be  made 

for  the  inja- 
\it  in  a  mark, 

the  marks  in 
ire  than  the 

1  15  are  also 
ropriates  the 
Qother  inland 
intended  for 
or  articles  for 
denotation  of 

and  17)  has 
)  500  fl.  is  to 
lent  incurred 


Seo.  19.  The  punishment  may  be  doubled  on  a  repetition. 
On  a  further  repetition  the  offender  is  to  be  imprisoned  for 
from  a  week  to  three  months,  besides  the  fine. 

Seo.  20.  If  the  fine  should  seriously  affect  the  circumstan- 
ces or  the  means  of  subsistence  of  the  delinquent  or  his 
family,  or  prevent  him  from  making  the  compensation  due 
for  the  criminal  act,  it  is  to  be  converted  into  one  day's 
imprisonment  for  every  6  fl. 

Sbo.  21.  The  punishing  authority  can  also  direct  that  the 
sentence  be  published. 

Sso.  22.  The  amounts  of  the  fines  go  to  the  poor  fund  of 
the  place  where  the  transgression  has  been  committed. 

VI.    Atith(mtie9  and  Proceedingt. 

Sbo.  28.  The  procedure  and  decision  respecting  encroach- 
ments (sections  15  and  17),  as  well  as  the  investigation  and 
punishments  of  the  transgressions  described  in  sections  18 
and  19,  belong  to  the  political  administrative  authorities  of 
first  instance,  according  to  the  existing  regulations  for  the 
proceedings  and  the  course  from  court  to  court  in  industrial 
disturbances  and  industrial  transgressions.  The  political 
authority  also  decides  disputes  respecting  the  right  in  marks, 
the  priority  and  transfer  thereof,  and  respecting  the  question 
of  identity  of  marks.  But  the  decision  of  the  claims  for 
■compensation,  mentioned  in  section  16,  belongs  to  the  civil 
judge." 

Sbo.  24.  Criminal  proceedings  on  account  of  the  transgres- 


^4. 


46 

sioQS  of  law  described  in  this  law  can  only  be  commenced  on 
the  application  of  the  injured  party,  unless  there  be  a  crimi- 
nal act  involved,  which,  according  to  the  genernl  criminal 
law  must  be  officially  prosecuted  by  the  criminal  court. 

If,  however,  the  injured  party  withdraws  his  application 
for  punishment  before  the  official  decision  is  made  known  to 
the  defendant,  then  he  has,  without  prejudice  to  his  private 
claims  to  compensation,  also  to  relinquish  the  demand  for 
any  punishment,  as  well  as  any  further  investigation  for  the 
purpose  of  punishment. 

Sbo.  25.  Whenever  the  question  of  an  encroachment  rests 
on  a  comparison  of  two  marks,  the  authority  is  to  obtain  a 
report  from  unprejudiced  professional  persons.  At  the  recep- 
tior.  of  the  report  the  parties  are  also  to  be  present  and  to  be 
heard  with  their  explanations  and  objections  of  any  kind. 
A  report  can  only  be  opposed  on  account  jof  objections 
against  the  professional  persons,  or  on  account  of  want  of 
form.  If  it  is  deficient  or  indistinct  its  completion  may  be 
insisted  upon.    An  inspection  is  not  allowed. 

Seo.  26.  The  injured  party  is  entitled,  even  before  the 
decision  of  his  complaint,  to  require  the  seizure  or  other 
custody  of  the  goods  marked  contrary  to  the  provisions  of  this 
law,  and  the  tools  used  for  the  purpose.  The  political 
authority  is  immediately  to  order  the  same  on  production  of 
the  copy  of  the  mark  issued  and  attested  according  to  section 
10.  It  is  left,  however,  to  the  judgment  of  the  said  authority 
to  require  a  preliminary  security  for  the  aflfiont  and  dam- 
ages of  the  defendant. 


47 


ommenced  on 
jre  be  c  crimi- 
lernl  criminal 
lal  conrt. 
is  application 
lade  known  to 
to  his  private 
e  demand  for 
igation  for  the 

tachment  rests 
is  to  obtain  a 

At  the  recep- 
sent  and  to  be 

of  any  kind, 
jof  objections 
nt  of  want  of 
letion  may  be 

en  before  the 

zure  or  other 

jvisions  of  this 

The  political 

production  of 

ling  to  section 

said  authority 

■ont  and  dam- 


V.     Transitory  Provisions. 

Sbo.  27.  Even  the  traders  who  at  present  use  a  mark  can 
only  acquire  the  exclusive  right  to  it  on  the  conditions  of 
this  law. 

Seo.  28.  For  this  purpose  the  interval  to  the  end  of  the 
month  of  June,  1859  is  granted  to  them,  to  the  effect  that  by 
the  registration  of  the  miirk  during  this  interval  the  rigLt  is 
secured  to  every  one  of  maintaining  the  priority  of  his  mark 
used  before  '  e  appearance  of  this  law,  even  against  any  one 
who  may  have  anticipated  him  in  the  registration  of  the 
said  mark,  but  has  not  actually  made  use  of  it  up  to  the  in- 
troduction of  this  law. 

•  Sec.  29.  If,  however,  before  the  operation  of  this  law, 
several  have  used  the  same  mark,  then  of  those  who  have 
this  mark  registered  within  the  interval  fixed  in  section  28 
he  acquires  the  exclusive  right  in  the  mark  who  proves  that 
he  has  used  it  earlier  than  the  rest.  Any  dispute  is  to  be 
decided  by  the  police  authorities,  after  hearing  the  contend- 
ing parties,  on  the  evidence  of  the  proofs  brought  forward  by 
them  as  to  the  earlier  commencement  of  the  previous  use  of 
the  mark. 

In  those  provinces  where  mark  registers  (sign  rolls,  &c.) 
were  kept  with  public  attestation  before  the  appearance  of 
this  law,  the  contents  thereof,  when  no  objection  prevails  to 
•the  contrary,  are  to  settle  the  question.  If,  however,  none 
oi'  the  contending  parties  can  produce  proof  of  the  longer  use 
of  such  mark  than  the  rest,  then  the  question  must  be  decided 
by  lot. 


ii 


%^ 


i:;:!: 


!  I 


48 


Sbo>  80.  With  regard  to  marks  that  are  flrat  bronght  for 
registration  after  the  80th  June,  1869,  no  claim  of  priority 
can  be  derived  from  any  application  of  them  before  the 
appearance  of  this  law. 


d 


pm 


«t  bronght  for 
im  of  priority 
am  before  the 


m:'     i-' 


ita 


mmm^M 


